Gould v. M.F.A. Mut. Ins. Co.

• Decision Date: 04 February 1960
• Docket Number: No. 7795,7795
• Citation: 331 S.W.2d 663
• Parties: Jessie GOULD and Stella Gould, Plaintiffs-Respondents, v. M.F.A. MUTUAL INSURANCE COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 663

331 S.W.2d 663

Jessie GOULD and Stella Gould, Plaintiffs-Respondents, v. M.F.A. MUTUAL INSURANCE COMPANY, Defendant-Appellant.

No. 7795.

Springfield Court of Appeals, Missouri.

Feb. 4, 1960.

Blanton & Blanton, Sikeston, for defendant-appellant.

Robert A. Dempster, Daniel S. Norton, Sikeston, for plaintiffs-respondents.

STONE, Presiding Judge.

This is a suit on a fire insurance policy. About 2:30 A.M. on January 21, 1958, a 22-foot, 2-wheel, wooden house trailer (and the contents thereof) owned by plaintiffs, Jessie and Stella Gould, burned on the 30-acre farm of plaintiff Stella's sister and her husband near Benton, Missouri. As plaintiffs' evidence went, Jessie had been 'picking fruit' in Florida since 'about the first of December' 1957, Stella had been with her son in Kentucky since 'a couple weeks' after Jessie left for Florida, the trailer door had been padlocked with Stella carrying the only key, and the cause of the fire was shrouded in mystery.

Plaintiffs had purchased the trailer on October 28, 1957, for $150; but, although an illiterate man unable to read and 'just barely' able to sign his name, plaintiff Jessie with uncanny prescience had applied on the same day for fire insurance coverage of $500 on the trailer and $500 on the household goods situate therein. According to Jessie, he thereafter spent 'about $400' on materials used in repairing and improving the trailer, and he and his brother-in-law 'did the labor' on it. Plaintiffs lived in the trailer until Jessie went to Florida. Thereafter left behind in the padlocked trailer (so plaintiffs said) were items of personal property having an aggregate value of not less than $1,000, to-wit, a 21"' television set purchased for $269 in cash in September 1957, a 'divan type' bed purchased 'at watermelon time' in 1957 for $169, a chest of drawers, a cedar chest, a coffee table, a chair, a cabinet, a fan, a table lamp, an oil heater, a gas stove, two throw rugs, eight quilts, six sheets, twelve pillow cases, two pillows, three blankets, two bed spreads, a broom, a mop, a dust mop, towels and wash cloths valued at $25, dishes and cooking utensils of like value, and all of Jessie's 'winter clothes' including 'six, seven, or eight or ten pair' of 'nice dress pants' and 'three or four coats.' At the close of a bitterly-contested trial, it took a Scott County jury seventeen minutes to retire, choose a foreman, and return a unanimous verdict awarding plaintiffs the full coverage of $500 ont he trailer and $500 on household goods. Defendant appeals.

The initial appellate complaint is that the trial court erred in overruling defendant's after-trial motion for judgment in accordance with its motion for a directed verdict, or in the alternative for a new trial, because plaintiffs' petition fails to state a cause of action in that it does not allege the actual cash value of the property destroyed at the time of the fire. ¹ However, it would seem that the attacked petition should not be held fatally deficient at this stage of the litigation, under the holdings that an allegation to the effect that the insured property was totally destroyed by fire is to be regarded after verdict as an averment of loss to the amount of the value of the property. ² Furthermore, several cases point out that a defect of this character in a petition is cured by evidence of value received without objection. ³

Accordingly, we next consider instant defendant's contention that there was no evidence as to the actual cash value of the insured property at the time of the fire. Referring first to the household goods, we observe that, when plaintiff Jessie was asked on redirect examination 'what was the value, entire value, in your opinion of the contents of the house trailer that burned,' he answered, without objection, 'I would figure a thousand dollars or twelve hundred dollars,' and that, on subsequent recross-examination, defendant's counsel inquired, 'you say that in your opinion the value of this property was how much, for the contents,' and thus elicited the reply, 'around a thousand dollars.' Regardless of whether this testimony might have been excluded upon proper and timely objection (as to which we express no opinion), its probative worth and effect were for the jury in the circumstances of the record before us, ⁴ and we may not hold that there was no evidence as to the value of the burned contents of the trailer.

As for the trailer itself, we start with the plain proposition that, under the so-called valued policy statute applicable to personalty [Section 379.160 RSMo 1949, V.A.M.S., as amended Laws of 1957, p. 214], defendant will not be heard to deny that, whatever plaintiffs paid for the trailer [Meier v. Eureka-Security Fire & Marine Ins. Co. of Cincinnati, Mo.App., 168 S.W.2d 127, 134(17)], its actual value at the time of the issuance of defendant's policy, i.e., on October 28, 1957, was the full amount for which it was insured, to-wit, $500. ⁵ Since the fire on January 21, 1958, admittedly resulted in a total loss, the measure of damages for destruction of the trailer was its value at the inception date of defendant's policy, to-wit, $500, less depreciation, if any, from that date to the time of the fire. ⁶ Although there was no direct evidence as to the reasonable market value of the trailer at the time of the fire [cf. Strawbridge v. Standard Fire Ins. Co. of Hartford, 193 Mo.App. 687, 690, 187 S.W. 79, 80; Cunningham v. Holzmark, 225 Mo.App. 762, 769, 37 S.W.2d 956, 960, 47 S.W.2d 1097], we think that, with its value conclusively fixed at $500 as of the inception date of defendant's policy, with affirmative evidence that plaintiffs thereafter repaired and improved the trailer by the use of materials costing 'about $400,' and with no suggestion of any depreciation in value during the period of less than three months to the date of the fire, the jury reasonably could have found that the trailer was worth not less than $500 when it burned. ⁷

To those whose moral sensibility may be wounded by the declaration that a used trailer purchased for $150 was worth $500 later the same day when insured for that amount, we offer such philosophical balm as may be extracted from these sage observations of another generation:

'The manifest policy of the statute is to prevent, rather than encourage, over-insurance, and to guard, as far as possible, against carelessness, and every inducement to destroy property in order to procure the insurance upon it. It was also designed to prevent insurance companies from taking reckless risks in order to obtain large premiums by advising them in advance that they would be held to the value agreed upon when the insurance was written. * * * The policy of the law seems to us wise and wholesome, but, if it were not, it is the province of the legislature to repeal it, and not ours to usurp legislative authority. More care in the selection of agents and more care in the inspection of the insured property will dispense with many of the objections urged against the policy of this statute.' ⁸

In another assignment of error, counsel for defendant earnestly insist that their motion for a directed verdict should have been sustained 'because the evidence showed conclusively that, prior to denial of liability by the defendant, the plaintiffs were guilty of false swearing relative to material facts affecting the risk and the alleged loss, to-wit, as to the value of items of property, and that there was a TV set, divan, cooking utensils and bed clothing in said trailer at the time of the alleged fire when the record shows conclusively' to the contrary. In elaborating upon their contention of 'false swearing' as to 'the value of items of property,' defendant's counsel point out in their argument that 'shortly after January 21, 1958, plaintiff, Stella Gould, by her statement of loss listed certain items and the original cost thereof, and the plaintiffs allegedly under date of April 22, 1958, listed certain items * * * and set out as the original cost thereof figures that were in conflict with the statement of loss given by Stella Gould.' (Emphasis ours.) But, although this be true, it does not establish 'conclusively' that 'plaintiffs were guilty of false swearing.' In the first place, examination of plaintiff Stella's 'statement of loss' reveals that, although defendant's claim adjuster who obtained the statement said that it was in Stella's handwriting (Stella did not testify herself), the statement was not subscribed and sworn to by Stella and, for that matter, did not even bear her signature. When a party is not bound conclusively by inconsistent or contradictory statements in prior testimony under oath, either in a deposition ⁹ or at a former trial of the same cause, ¹⁰ but such inconsistencies or contradictions, even though unexplained, ¹¹ go only to the credibility of the one uttering them, certainly variations between original cost figures in an unsigned, unsworn statement and in a subsequent proof of loss would furnish no 'conclusive' proof of 'false swearing.' ¹² In fact, it has been said specifically that, even where there is a difference between the amounts claimed in a proof of loss and upon subsequent trial, for which discrepancy no satisfactory explanation is offered, no presumption arises that the insured has sworn falsely, but it becomes a question for the jury to determine, from all of the facts and circumstances in the case, whether such discrepancy is the result of accident, honest error, or fraudulent intent. Schulter v. Merchants' Mut. Ins. Co., 62 Mo. 236, 238-239.

Furthermore, the 'false swearing' which will void an insurance policy must have been willful, with respect to a material matter, and with the intent to deceive the insurer. ¹³ Emphasizing the element of materiality, it has been held that, '(a) misrepresentation, in order to constitute fraud and false swearing under a fire insurance policy, must exaggerate the...