Knight v. Glenn Falls Ins. Co.

• Decision Date: 23 September 1929
• Docket Number: No. 4581.,4581.
• Citation: 20 S.W.2d 941
• Parties: KNIGHT v. GLENN FALLS INS. CO.
• Court: Missouri Court of Appeals

20 S.W.2d 941

KNIGHT v. GLENN FALLS INS. CO.

No. 4581.

Springfield Court of Appeals. Missouri.

September 23, 1929.

Rehearing Denied October 30, 1929.

Appeal from Circuit Court, Carter County; E. P. Doris, Judge.

Action by James Knight against the Glenn Falls Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

H. D. Green, of West Plains, for appellant.

COX, P. J.

Action upon a fire insurance policy to recover the value of an automobile insured by defendant, and which had burned. Plaintiff recovered, and defendant appealed.

The petition alleged the issue and delivery of the policy for the sum of $230, the destruction of the automobile by fire, and plaintiff had complied with all the terms of the policy on his part; also alleged that, after the fire, the adjuster of the company was sent by the company to adjust the loss; that he and the adjuster agreed upon the sum of $230, the face of the policy; that $160 thereof was paid by the company to the Securities Investment Company, of St. Louis, Mo., in satisfaction of a mortgage against the car, but the company had refused to pay the balance of $70 to him. He then pleaded vexatious delay, and asked judgment therefor and attorney's fees.

The answer admits the incorporation of defendant and the issuance of the policy; then follows a general denial. For a further answer it is alleged that plaintiff made up a proof of loss, in which he stated, among other things, "that the cash value of such automobile was $160.22; that the whole loss was $160.22; that the whole insurance was $230; that the amount named in this policy was $230, and the amount claimed under the policy was $160.22; and the defendant, further answering, states that in pursuance of such proof of loss so made by this plaintiff it did issue its check, payable to the order of James Knight and Securities Investment Company, in the sum of $160.22, and that the said check was cashed, and that it bears the indorsements of the payees above named, and that upon the indorsements of the payees, one of whom is the plaintiff, is the following: `Received of the Glenn Falls Insurance Company the sum specified on the other side and in consideration thereof they are fully discharged from all claims of such loss and such policy is hereby canceled and surrendered to said company.'" It further alleged that by reason of the proof of loss sworn to by plaintiff, the payment as aforesaid, and the receipt above set out, all liability of defendant accruing out of the loss of the automobile by fire has been fully settled, discharged, and paid.

The reply "admits that a settlement was entered into and contract signed on proof of loss by fire of said Ford coupé, but denies that settlement was made on the basis of the full value of the car in the sum of $160.22, but states that said settlement agreed upon between the agent and representative or adjuster of defendant company and plaintiff herein was for the sum of $230, $160.22 of which was to be paid to the Securities Investment Company and $70 to be paid the plaintiff; that after such an arrangement and agreement was entered into said adjuster or representative of defendant drew up and prepared a settlement contract and presented to plaintiff, to be executed, and relying upon said adjuster to prepare and draw up said contract or settlement as agreed upon, in the sum of $230 as aforesaid, he executed the same without further question or investigation as to the amount actually included in said contract. Plaintiff further states that said contract was drawn up for $160.22 in full settlement, and that it was illegal and void, and was a fraud perpetrated upon this plaintiff by said agent and adjuster." Plaintiff then alleged that the amount then due him after paying the mortgage of $160.22 is $69.78, for which he asks judgment with penalties and attorney's fees for vexatious delay in refusing to pay him.

The condensed statement of the pleadings will result as follows: The petition alleges the existence of defendant's policy for $230; the settlement with defendant's adjuster on an agreed liability of $230, of which $160 was to be paid to the holder of the mortgage on the automobile and $70 to plaintiff. The answer alleges that plaintiff prepared and filed with it a proof of loss, in which plaintiff stated that the value of the automobile was $160.22, although insured for $230; that in pursuance of this proof of loss defendant paid $160.22 by check payable to plaintiff and the holder of the mortgage;...