Pavey v. London & Provincial Marine & General Ins. Co.
| Decision Date | 06 December 1926 |
| Docket Number | No. 15784.,15784. |
| Citation | 288 S.W. 788 |
| Court | Missouri Court of Appeals |
| Parties | PAVEY v. LONDON & PROVINCIAL MARINE & GENERAL INS. CO., Limited. |
Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.
Action by Ira N. Pavey against the London & Provincial Marine & General Insurance Company, Limited, on a fire insurance policy. Judgment for plaintiff, and defendant appealed. Affirmed.
Eastin & McNeely, of St. Joseph, for appellant.
C. W. Crosson, of Kansas City, and John S. Boyer and C. C. Crow, both of St. Joseph, for respondent.
This Is an action to recover upon a policy of fire insurance issued by defendant on January 27, 1925, in the sum of $3,500, whereby defendant insured for a period of one year a stock of groceries and fixtures, as described in the policy, against all direct loss or damage by fire, in the above-mentioned sum.
The facts of record are that defendant is an insurance company duly licensed and authorized to do business in the state of Missouri, and was so operating in this state at the time the policy herein was issued; that, some time prior to the fire and before the issuance of the policy herein, plaintiff purchased a stock of groceries and fixtures located at 4031 Troost avenue, Kansas City, Mo.; that, after being operated for some months at this address as a combined grocery and butcher business, the stock was moved to No. 4014 State Line street, which is on the line between the states of Missouri and Kansas, the new location being on the Kansas side of the street. The store was operated for a few months at this place, and the insurance policy in suit was issued during that period.
On April 23, 24, and 25, 1925, the stock of merchandise covered by the policy as claimed by plaintiff, was moved into a one-story brick building 40 feet long by 20 to 30 feet wide, with concrete floor, located at 7123 Prospect avenue, Kansas City, Mo. By proper indorsement of defendant, the insurance was made to apply at the new location. It appears the stock was moved by plaintiff's son-in-law, one McGuire, in a Ford touring car, and thus two or three days were consumed in the removal. The fixtures so moved were placed in the building at the new location and the merchandise piled upon the floor, awaiting proper placing of shelves and other fixtures.
On April 25, 1925, the night upon which the moving was completed, between the hours of 11 o'clock p. m. and midnight, a fire of unknown origin occurred in the room where the merchandise and fixtures were located. A fire company responded from a station a short distance away and within a minute and a half members thereof appeared on the scene, attached a hose and turned a stream of water on the fire. By this means the worst of the flame was extinguished, and the fire was completely subdued by the use of chemical hose. It appears the most inflammable portion of the stock consisted of toilet paper and matches.
On the night of the fire, plaintiff left to go, to Illinois on account of the death of a relative, and went to the Union station at about 6 to 6:30 p. m. Instead of going to Illinois, however, he stopped in St. Louis, where he remained until he received a telegram about one week later telling him of the fire, whereupon he returned to Kansas City. It appears that on his departure for Illinois, he placed the key to the store in the hands of his son-in-law McGuire. Plaintiff's wife, who had been in Illinois, returned ahead of plaintiff and placed the adjustment of the loss in the hands of an adjuster for the insured, one Crossan. The place remained open that night and part of the next day after the fire, the front windows being broken and the stock exposed. There is testimony tending to show that between midnight and morning after the fire some of the stock was removed by an unknown man and woman and taken away in a Ford automobile.
An inventory, introduced in evidence, made a day or two after the fire by a representative of the adjuster for the insured and Mrs. Koons, daughter of plaintiff, showed identifiable merchandise of the value of $496.68, which was sold in bulk as salvage for $100. This net amount, or $396.68, defendant paid plaintiff, together with an item of $23.50 for expenses in boarding up the shop windows. Defendant also paid plaintiff the sum of $865.75, as agreed upon as total damage to the fixtures, making a total payment of $1,285.73. Defendant refused to pay the difference between the value of the stock before the fire as alleged by plaintiff and the value of the damaged stock found after the fire as then inventoried.
It is in evidence that immediately prior to the removal from the State Line number to the Prospect avenue address, where the fire occurred, plaintiff's daughter Mrs. Koons, who aided her father in the purchase of new stock and in the management of the store, invoiced the stock at cost price. This invoice, however, had been lost or misplaced new and does not appear in evidence. Mrs. Koons testified she was familiar with the stock and its value, and estimated it at $1,400 to $1,500. Testifying on this point, plaintiff placed the value of the stock at $1,667.76, basing his estimate on the total made by him of the invoice taken by Mrs. Koons, the cost price of each item of which she had extended but not totaled.
There is testimony of record tending to show that, after putting out the fire, the fire department cleaned the rubbish out of the room and put it on a rick in the space between the sidewalk and the curb; made a pile also at the rear of the storeroom, and later some of the stuff was ordered dumped into the river by the food inspector of the city.
The petition alleges that plaintiff's stock and fixtures were insured by defendant against loss by fire in the sum of $3,500, making the policy a part of the petition; alleges destruction of the property by fire on April 25, 1925, and placing a value thereon of $3,607.10, and putting plaintiff's loss at $2,389.25; alleges that proof of loss was duly made on May 29, 1925, and that, by the terms of said policy, the claim was due and payable on May 29, 1925; admits that defendant has paid plaintiff on account of said loss the sum of $1,285.73; and claims there is still due thereon $1,103.52. The prayer is for this sum and interest, together with 10 per cent. for vexatious delay and for $500 reasonable attorney's fee.
The answer also pleads the policy in question; admits consent to the removal of the stock, and alleges that by the fire in question plaintiff's loss was $1,285.73 only, which, under the terms of the policy was the extent of defendant's liability; avers the payment to plaintiff of said sum; and denies generally all other allegations of the petition, including vexatious delay. The answer further states that by the terms of the policy defendant did not insure against loss by theft or neglect to use all reasonable means to save and preserve the property after the fire occurred and that it has fully paid plaintiff all of the loss or damage covered by the terms of the contract and states that, if plaintiff has suffered other loss, it was from theft or other causes not covered by the policy.
Upon the pleadings thus made, the cause went to trial to a jury, resulting in a verdict for plaintiff in the sum of $1,103.52 and interest at 6 per...
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