Kahn v. London Assurance Corporation
| Decision Date | 15 February 1915 |
| Citation | 173 S.W. 695,187 Mo.App. 216 |
| Parties | LILLIE A. KAHN, Respondent, v. LONDON ASSURANCE CORPORATION, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.
AFFIRMED (conditionally.)
Fyke & Snider for appellant.
Yates & Mastin and C. S. McLane for respondent.
This is an action on a fire insurance policy issued by defendant on certain household goods owned by plaintiff and contained in a residence she rented furnished to tenants. The residence was unoccupied at the time of the fire which occasioned the loss. Some of the goods were totally destroyed, others damaged, and plaintiff claimed her actual loss was over $ 2000. The policy insured her against all direct loss and damage by fire in the sum of $ 1500, and provided that defendant "should not be liable beyond the actual cash value of the property at the time any loss or damage occurs . . and in on event exceeding what it would then cost the insured to repair or replace the said property with material of like kind and quality."
Plaintiff demanded payment of the face of the policy on the ground that the actual loss greatly exceeded that sum. Defendant denied that the loss equaled the amount of the insurance and pursuant to the terms of a stipulation in the policy the parties entered into a written agreement submitting the controversy to appraisers who returned an award appraising the loss at $ 400. Plaintiff refused to accept the award claiming that it was improperly and illegally rendered and brought the present action to recover the face of the policy $ 1500, together with interest and also a ten per cent penalty and reasonable attorney fees for the alleged vexatious refusal of defendant to pay. The actual loss sustained by plaintiff in consequence of the fire was alleged to be $ 2179.77. In the answer defendant pleaded the appraisal of the loss and alleged that the amount awarded by the appraisers ($ 400) was a reasonable estimate of the actual loss.
The reply attacked the validity of the award and the cause was tried by both parties on the theory that the only debatable issue in the case was the amount of the loss sustained by plaintiff. The jury returned a verdict for her assessing her loss, including interest, at $ 1353.75, and her attorney's fees at $ 125, the latter assessment being based on the finding that defendant "vexatiously failed and refused to pay such loss." No other penalty was assessed. Defendant appealed from the judgment rendered on this verdict and argues, first, that the court erred in the admission of evidence and, second, that the allowance of the attorney's fee as a penalty for a vexatious refusal to pay the loss cannot be permitted to stand in the face of the finding of the jury that plaintiff's recoverable damages are substantially less than she demanded in her petition.
There is no merit in the first point. About a year before the loss plaintiff placed her furnished house in the hands of a real estate agent to rent and made an accurate list of personal property contained in it. Six months later on the occasion of a change of tenants this list was checked over. Plaintiff kept it as a memorandum of her property and testified that it was a correct list of the property she had left in the house for the use of her tenants. It was legal evidence of the quantity and character of property defendant had undertaken to insure and was properly admitted, since that fact had a direct bearing on the issue of the extent of the damage wrought by the fire.
The second point is well taken. The pertinent statute (sec. 7068 R. S. 1909) provides that "if it appear from the evidence that such company has vexatiously refused to pay such...
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