Lockwood v. Atlantic Mut. Ins. Co.

• Decision Date: 31 October 1870
• Citation: 47 Mo. 50
• Parties: RICHARD J. LOCKWOOD et al., Respondents, v. THE ATLANTIC MUTUAL INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

47 Mo. 50

RICHARD J. LOCKWOOD et al., Respondents,

v.THE ATLANTIC MUTUAL INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1870.

Appeal from St. Louis Circuit Court.

G. P. Strong, for appellant.

I. The measure of damages established by the fifth instruction is erroneous and the damages are excessive.

II. The contract of insurance is a contract of indemnity. If entitled to recover at all, the assured is only entitled to recover what he has lost by the peril insured against. (1 Phill. Ins. 1, § 1; id. 5; id. 185, § 327; 2 Phill. Ins. 47, § 1238; McGregor v. Ins. Co. of Pennsylvania, 1 Wash. C. C. 39.)

Rankin & Hayden, for respondents.

I. The insurance in this case was on freight--not, as the defendant supposes, on profits. Profits may be insured, but this is not such an insurance

II. The policy is a valued policy, and the defendant can not repudiate his own agreement, no fraud being pretended as to the amount. (See Lockwood v. Sangamo Ins. Co., 46 Mo. 71.)

BLISS, Judge, delivered the opinion of the court.

This is an action upon a policy of insurance upon the freight list of the steamer Bridgeport, bound for the upper Missouri, and substantially the same facts are embodied in the record as were shown in Lockwood v. Sangamo Ins. Co., 46 Mo. 71. The case was tried by jury, and the plaintiffs recovered judgment. One of the instructions complained of is the same, adapted to a freight-list insurance, as the one first considered in said case, and the present criticism raises no new point. It seems rather verbal than substantial.

The jury were also instructed that if they believed the defendant vexatiously refused to pay the loss, they might add to the amount of the policy and interest a further allowance of not exceeding ten per cent. The jury found the issues in favor of the plaintiffs, and assessed the ten per cent. penalty. On motion for a new trial, the court informed the plaintiffs' counsel that it would be granted unless the penalty was remitted, which was thereupon done, and the motion was overruled, thus indicating the opinion of the trial court that the evidence warranted a finding for the amount insured, but not for the additional ten per cent. The defendant's counsel now object to the instruction, upon the ground that there was no evidence tending to prove the vexatious refusal, and that the defense was prejudiced in the minds of the jury by giving it. We can not say that there was no evidence tending to prove such refusal, though we agree with the trial judge that it was not proved, and have no doubt the defense was made in good faith. Trial courts, in reviewing verdicts, are not subject to the same rules that govern appellate courts. They may weigh the evidence, and, if they think injustice has been done, grant a new trial, in cases where they would not be justified in taking an issue from the jury, and where appellate courts should not interfere. It does not follow, because the court thought, under the evidence, that the penalty should not have been imposed, that the law authorizing it should have been withheld from the jury. It was their province to say whether there had been a vexatious refusal or not, and, if there was evidence tending to show it, it became the duty of the court to leave the question to them, with the right to review the finding. The right to dictate it in advance does not hence follow. In Brown v. Railway P. Ins. Co., 45 Mo. 221, the court held that direct and explicit proof that the delay or refusal was vexatious, is not required, but that the jury must form their conclusions from all the facts and circumstances of the case. All these facts and circumstances must be submitted with reference to this question, as well as to the main one. Had the defendant requested it, the court would doubtless have given fuller instructions upon the point, and told the jury that the refusal, to be...