Globe & Rutgers Fire Ins. Co. v. Chicago & A. R. Co.

• Decision Date: 17 November 1913
• Citation: 174 Mo. App. 542,160 S.W. 907
• Parties: GLOBE & RUTGERS FIRE INS. CO. v. CHICAGO & A. R. CO.
• Court: Missouri Court of Appeals

160 S.W. 907

174 Mo. App. 542

GLOBE & RUTGERS FIRE INS. CO. v. CHICAGO & A. R. CO.

Kansas City Court of Appeals. Missouri.

November 17, 1913.

1. INSURANCE (§ 606) — FIRE INSURANCE — ACTION BY COMPANY — MEASURE OF DAMAGES.

Since a railroad company was not a party or privy to a contract of insurance taken out by the owner of property along the right of way, its liability to the owner or the insurance company, when subrogated to his right, would not be affected by such contract, and hence the measure of the railroad company's liability to the subrogated insurance company was the

actual value of the property destroyed at the time of the fire, and not its insured value.

2. EVIDENCE (§ 142) — FIRE INSURANCE — ACTIONS — ADMISSION OF EVIDENCE — VALUE OF PROPERTY.

In an action by a fire insurance company, subrogated to the owner's rights, against a railroad company for damages for the destruction of adjacent property by fire from an engine, evidence was admissible, on the question of the value of the houses destroyed, as to what the owner had sold similar houses for.

3. DAMAGES (§ 217) — INSTRUCTIONS — REASONABLE VALUE.

The use of the term "reasonable value," in instructions on the issue of the market value of property destroyed by fire, was not reversible error; the term having a well-known meaning to the common understanding and being of common use in judicial proceedings.

4. TRIAL (§ 121) — ARGUMENT — CONFORMITY TO EVIDENCE.

Where, in an action by a fire insurance company, subrogated to the owner's rights, against a railroad company for the destruction of the insured property by fire, the insurance company claimed that the houses were insured at their reasonable value, while the railroad's evidence showed that they were insured at seven times their real value, argument of defendant's counsel "that there was a nigger in the woodpile," explained by stating that, in view of the gross overinsurance and the prompt settlement of the loss by the insurance company, there must have been some close relationship between the officers of the insurance company and the owner of the property, was justified, though the issue of fraudulent overinsurance was not raised.

5. COSTS (§ 42) — OFFER OF COMPROMISE — EFFECT.

Under Rev. St. 1909, § 1965, providing that, if plaintiff fail to obtain a more favorable judgment than the amount for which defendant offered to allow judgment to be taken against him, plaintiff shall pay defendant's costs from the time of the offer, defendant was entitled to have costs taxed against plaintiff which were incurred after defendant's offer to allow judgment against it for $400 and costs, where the judgment for plaintiff was only for $375.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

Action by the Globe & Rutgers Fire Insurance Company against the Chicago & Alton Railroad Company. From a judgment for plaintiff for a less amount than it claimed, it appeals. Affirmed.

Clarence A. Barnes, of Mexico, Mo., and Barger & Hicks, of Chicago, Ill., for appellant. W. P. Pinkerton and Scarritt, Scarritt, Jones & Miller, all of Kansas City, for respondent.

JOHNSON, J.

In 1910 the plaintiff, an insurance company, issued a policy of fire insurance to a corporation engaged in coal mining in Randolph county. The policy covered a large number of small frame dwelling houses called "company or camp houses," each of which was valued at $240. A fire caused by a passing train on defendant's railroad that ran through the camp totally destroyed ten of these houses and damaged others in the amount of $25. Proofs of loss were duly made by the coal company, and plaintiff paid $2,425 in discharge of its liability and received an assignment from the coal company of its cause of action against defendant. Plaintiff then commenced the present suit to recover the amount of its loss on the ground, alleged in the petition, "that upon the payment of said sum the said Globe & Rutgers Fire Insurance Coal Company became and was subrogated to all the rights of the said Northern Central Coal Company against the said defendant, the Chicago & Alton Railroad Company, for the recovery of the said sum of money, $2,425, by reason of the destruction of the said property by fire communicated thereto by the locomotive engine in use on the railroad owned and operated by the defendant as aforesaid." The petition alleged that the ten houses destroyed were "of the reasonable cash value of $2,400." The answer of defendant is a general denial.

The evidence shows conclusively that the fire which caused the loss originated from a passing locomotive on defendant's road, and the only dispute between the parties relates to the measure of plaintiff's right of recovery. Defendant contends that the value of the houses at the time of the fire was the measure of damages and before the trial served on plaintiff an offer of judgment in writing in which it agreed that judgment might be rendered against it in the sum of $400 and the acrrued costs. This offer was refused, and at the trial defendant was allowed to introduce evidence tending to show that the houses were old, rotten, abandoned as dwelling places, and that the coal company had been selling them for $35 each, which was their reasonable value at the time of the fire. The court refused the request of plaintiff for an instruction fixing the measure of damages at the amount of plaintiff's liability under the policy and instructed the jury that they "cannot allow plaintiff more than the reasonable value of each house or houses burned at the time and place of the fire." Thus instructed the jury returned a verdict for plaintiff for $375. Five days after the verdict, and at the same term of court, defendant filed a motion "to tax the costs of this suit incurred since the tender herein against the plaintiff." This motion was sustained; plaintiff excepted and duly preserved its exception. After unsuccessfully moving for a new trial plaintiff brought the case here by appeal.

First we shall dispose of the contention of plaintiff that the rulings of the court upon the instructions relating to the measure of damages were erroneous and prejudicial to the legal rights of plaintiff.

In setting out the fire which destroyed property of the coal company, defendant, under the provisions of section 3151, Rev. Stat. 1909, became liable to the owner of the property for the actual damage sustained. The liability of the plaintiff, as the insurer of the property, was not measured by the actual value of the property destroyed by the fire but by the value stated in the contract of insurance. Section 7020, Rev. Stat. 1909. If defendant's evidence...