Koropchensky v. Goddard
| Decision Date | 01 December 1924 |
| Docket Number | NO. 15142.,15142. |
| Citation | 266 S.W. 343 |
| Parties | KOROPCHENSKY v. GODDARD et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.
"Not to be officially published."
Action by Mel Koropchensky against Paul R. Goddard, attorney in fact of the Bull Dog Auto Fire Insurance Association of Chicago, Ill., and another. Judgment for plaintiff, and defendants appeal. Affirmed.
Randolph & Randolph, J. E. Tetherow, and O. E. Shultz, all of St. Joseph, for appellants.
Chas. F. Keller, Chas. H. Mayer, and Floyd M. Sprague, all of St. Joseph, for responden
This is an action on a policy of theft and fire insurance, covering an automobile which was stolen and, shortly thereafter and before it was recovered, was totally destroyed by fire. The jury returned a verdict for plaintiff in the sum of $892, of which $800 was for the amount of the loss and $92 was for interest. The insurance company has appealed.
There was no demurrer to the petition; and none to the evidence offered at any stage of the trial, either at the close of the evidence in plaintiff's behalf or at the close of the entire case. Appellant's brief raises but two points for consideration, namely: (1) That the plaintiff's petition is so hopelessly defective as to state no cause of action whatever, by reason of which appellant can, for the first time, attack the sufficiency of the petition in the appellate court; and (2) that plaintiff's instruction on the measure of damages is erroneous.
The petition alleged that on the 27th day of April, 1921, the insurance company issued and delivered to plaintiff its contract and policy whereby it insured a certain Studebaker automobile owned by plaintiff and built in the year 1919, having motor numbered 15997, against theft in the sum of $1,200 and against fire in the sum of $1,200; that afterwards and more than 60 days before the filing of suit, and while the policy was in force and the plaintiff was the owner of the automobile, the latter was stolen, and, before it was found, was totally destroyed by fire; that plaintiff, on November 8, 1921, notified the insurance company and complied with all the terms of the policy, but said company failed to pay said $1,200 or any part thereof, due to the plaintiff on account of the loss, wherefore judgment for $1,200 was prayed.
It will be observed that the value of the automobile "at the time of the fire is not explicitly, and in so many words, stated; and this is the ground upon which the attack upon the petition is now for the first time made.
Defendant's answer alleged that plaintiff, in applying for the insurance, falsely and fraudulently represented and warranted said automobile to be of the value of $1,600, whereas it was not of that value, but was of the value of $600.
Without pausing to decide whether this answer aided plaintiff's petition in the above respect, we are of the opinion that the petition should be held good after verdict. Gustin v. Concordia Fire Ins. Co., 90 Mo. App. 373, certified to the Supreme Court, where the same conclusion was reached. See 164 Mo. 172, 64 S. W. 178. This last-cited decision overruled Coleman v. Phoenix Ins. Co., 69 Mo. App. 566, and followed Jones v. St. Joseph, etc., Ins. Co., 55 Mo. 342. The case at bar is one where the petition alleged, and the proof showed, a total loss, and in that respect is different from the case of Story v. American Central Ins. Co., 61 Mo. App. 534. See, also, on the point here considered, Boulware v. Farmers' etc., Ins. Co., 77 Mo. App. 639; Wolff v. Hartford Fire Ins. Co., 204 Mo. App. 491, 498, 499, 223 S. W. 810.
Plaintiff's instruction No. 1, of which complaint is made, is as follows:
Appellant's contention is that it was error for the instruction to authorize a recovery to the extent of 50 per cent. of the list price of the car. It will be observed that the instruction authorized a recovery in an amount which the jury found from the evidence "was the actual value of the car not to exceed 50 per cent. of what you may find from the evidence was the list price of said car; but your verdict must not exceed $1,200." However, it is manifest that what appellant really contends for grows out of, and is made more clear by, the following:
It was shown in the evidence that the list price of an automobile of the make and model of the one in question, to wit, Studebaker sedan, 1919 model, was $2,535. By "list price" was meant the price at which they were listed at the factory for sale by dealers when new. It was further shown in evidence that the value of such a 1919 model in the condition plaintiff's was shown to...
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