Petrovic v. Standard Fire Ins. Co. of Hartford

• Decision Date: 11 January 1943
• Docket Number: No. 19998.,19998.
• Citation: 167 S.W.2d 412
• Parties: MICHAEL PETROVIC AND MILDRED PETROVIC, RESPONDENTS, v. STANDARD FIRE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

167 S.W.2d 412

MICHAEL PETROVIC AND MILDRED PETROVIC, RESPONDENTS, v. STANDARD FIRE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, A CORPORATION, APPELLANT.

No. 19998.

Kansas City Court of Appeals, Missouri.

January 11, 1943.

Appeal from Jackson Circuit Court. — Hon. Paul A. Buzard, Judge.

REVERSED AND REMANDED.

Burrus & Burrus and Johnson & Garnett for respondents.

(1) Defendant's peremptory instructions were properly refused. (a) O'Keefe v. Insurance Co., 140 Mo. 568; Lux v. Insurance Co., 30 S.W. (2d) 1090; Avery v. Insurance Co., 4 S.W. (2d) 871; Havens v. Insurance Co., 123 Mo. 403, 423; Rogers v. Insurance Co., 157 Mo. App. 671, 139 S.W. 265; Loduca v. Insurance Co., 105 S.W. (2d) 1011. (b) The appraisal proceedings and payment of the award made thereunder cannot operate to defeat plaintiffs' right of recovery, because the provisions of the policy providing for appraisal are inapplicable to property totally destroyed, and the written agreement for appraisal is nudum pactum. R.S. Mo. 1939, sec. 5930; Prather v. Insurance Co., 188 Mo. App. 653, 176 S.W. 527; Baker v. Assurance Co., 57 Mo. App. 559; Jacobs v. Insurance Co., 61 Mo. App. 572; Avery v. Insurance Co., 4 S.W. (2d) 871; Spencer v. Insurance Co., 65 S.W. (2d) 665. (2) The testimony of the witness Lewis, of which appellant complains, relates only to the issues on the appraisal, forms no foundation for the jury's verdict, and prejudicial error cannot be predicated thereon. Farmer's Loan & Trust Co. v. Southern Surety Co., 285 Mo. 621, 226 S.W. 926, 936; Yancey v. Central Mutual Ins. Ass'n, 77 S.W. (2d) 149, 158; Span v. Jackson Walker Coal & Mining Co., 322 Mo. 158, 16 S.W. (2d) 190, 200; Muller v. Mutual Benefit Health & Acc. Ass'n, 228 Mo. App. 492, 68 S.W. (2d) 873, 884. (3) Plaintiffs' instruction No. 3 was not prejudicially erroneous. (See authorities under Point (1) (b), supra); Yeager v. St. Joseph Lead Co., 12 S.W. (2d) 520, 523. (4) There was no error in refusing defendant's requested instructions Nos. 5 and 6. (See authorities under Point (1) (a), supra).

Hogsett, Trippe, Depping & Houts for appellant.

(1) The trial court erred in refusing defendant's requested instructions "A" and "B". (a) These were instructions in the nature of demurrers to the evidence offered by defendant at the close of plaintiffs' evidence and at the close of all the evidence. There was no competent evidence that the appraisal award was invalid, and the court should have directed a verdict for defendant. Lance v. Royal Ins. Co., 259 S.W. 535; Dworkin v. Caledonian Ins. Co., 285 Mo. 342, 226 S.W. 846; Dautel v. Ins. Co., 65 Mo. App. 44; Fawble v. Phoenix Ins. Co., 106 Mo. App. 527, 81 S.W. 485; James v. Ins. Co., 135 Mo. App. 247, 115 S.W. 478; Zallee v. Laclede Mutual Fire Ins. Co., 44 Mo. 530; Security Printing Co. v. Ins. Co., 209 Mo. App. 422, 240 S.W. 263; Kent & Purdy Paint Co. v. Aetna Ins. Co., 165 Mo. App. 30, 146 S.W. 78; Joyce v. Ins. Co., 194 S.W. 745. (b) By accepting the draft and by endorsing and cashing it in full payment and satisfaction of all claims under the policy (as the draft recited) plaintiffs released and discharged defendant from all further liability under the policy. Publishers, etc., v. Pepsin Syrup Co., 137 Mo. App. 472; St. Joseph School Board v. Hull, 72 Mo. App. 403; Andrews v. Manufacturing Co., 100 Mo. App. 599; St. Joseph Transfer Co. v. Indemnity Co., 224 Mo. App. 221, 23 S.W. (2d) 215; Saxton v. Retail Hardware Fire Ins. Co., 226 Mo. App. 954, 48 S.W. (2d) 144; Sheppard v. Protective Assn., 233 Mo. App. 602, 124 S.W. (2d) 528; Brizendine v. Ins. Co., 131 S.W. (2d) 906. (2) The trial court erred in admitting the testimony of the witness, C.Q. Lewis, Jr. Fink v. Algermissen, 25 Mo. App. 186; In re Sizer, 306 Mo. 356, 267 S.W. 922; Strather v. McFarland, 184 S.W. 483; Mathewson v. Larson-Myers, 217 S.W. 609; Gordon v. Burris, 141 Mo. 602, 43 S.W. 642; Truesdail v. Sanderson, 33 Mo. 532; Laytham v. Agnew, 70 Mo. 48; Meredith v. Wilkinson, 31 Mo. App. 1; Poe v. Stockton, 39 Mo. App. 550; Lindsay v. Bates, 223 Mo. 294, 122 S.W. 682; State v. Roberts, 201 Mo. 703, 100 S.W. 484; Lewellen v. Haynie, 25 S.W. (2d) 499. (3) The trial court erred in giving plaintiffs' instruction No. 3. Beck & Son v. Musick, 7 S.W. (2d) 307; Viles v. Viles, 190 S.W. 41; Jones v. Railroad, 226 Mo. App. 1152, 50 S.W. (2d) 217; Flaherty v. St. Louis Transit Co., 207 Mo. 318, 106 S.W. 15; Hunt v. St. Louis, 278 Mo. 213, 211 S.W. 673; Quinn v. Van Raalte, 276 Mo. 71, 205 S.W. 59. (4) The trial court erred in refusing defendant's requested Instruction No. 5. Ampleman v. Ins. Co., 35 Mo. App. 308; City of Aurora v. Ins. Co., 180 Mo. App. 263, 165 S.W. 357. (5) The trial court erred in refusing defendant's requested instruction No. 6.

SHAIN, P.J.

This is a suit on a fire insurance policy issued to Michael and Mildred Petrovic, plaintiffs herein, by Standard Fire Insurance Company of Hartford, Connecticut, a corporation, and defendant herein.

No question of the issuance of the policy, of the fact of the loss by fire, nor as to the policy being in full force and effect at the time of loss are involved, and no question of notice or proof of loss is raised.

The controversy herein principally arises upon a dispute as to whether or not the loss was partial or total.

What is known as the valued policy law of this State is involved herein.

Under the provisions of this law, Section 5930, Article 6, Chapter 37. Revised Statutes Missouri, 1939, when a total loss occurs the damage is the amount of the face of the policy, less depreciation in value after insurance attaches.

The fire insurance policy herein involved secured property of plaintiffs in the sum of $2225.

Plaintiffs' petition herein has allegations as follows:

"3. That on or about the 26th day of March, 1938, said dwelling house was totally destroyed by fire; that plaintiffs have duly performed all of the conditions required of them by the terms of said policy; and in due time and form these plaintiffs gave notice of said loss, and defendant paid on account thereof the sum of $1,561.56 on or about the 27th day of June, 1938, leaving a balance due of $663.44. Plaintiffs further state that they have demanded of and from the defendant the payment of the said balance but the defendant has failed and refused to so pay them.

"4. Plaintiffs further allege and state that said refusal of defendant to pay the amount due under said policy was and is vexatious and without reasonable cause and plaintiffs are entitled, on account of said vexatious refusal to pay, to damages in the sum of Sixty-six Dollars ($66) and a reasonable Attorney's fee in the sum of $250.

"5. Wherefore, plaintiffs pray judgment against the defendant in the sum of Six Hundred sixty three Dollars and forty-four cents (663.44) on account of said loss, and for the sum of $66 on account of the defendant's vexatious refusal to pay, and an attorney's fee of $250 and costs herein."

The defendant, in a verified answer, specifically denied that there was a total loss and alleges full acquittance by payment of the $1561.56, alleged as paid in plaintiffs' petition, and makes denial of any other liability.

Further pleading, defendant quotes and urges provisions of the policy of insurance as follows:

"`This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality; said ascertainment or estimate shall be made by the insured and this company or, if they differ, then by appraisers, as hereinafter provided; and the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company in accordance with the terms of the policy.

"`In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss; stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraisers respectively selected by them, and shall bear equally the expense of the appraisal and umpire.

"`This company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of loss herein required have been received by this company, including an award by appraisers when appraisal has been required.'

"Further answering, defendant alleges that following the loss in question there was a disagreement and difference between plaintiffs on the one hand and defendant on the other as to the amount of loss and damage sustained. Plaintiffs and defendant then and there agreed in writing to submit the matter of the loss and damage sustained to appraisers and said agreement for submission to appraisers entered into between plaintiffs and defendant was as follows:"

Defendant's answer further sets forth contract between the parties, submitting question of amount of loss to appraisers. The fourth and fifth paragraphs of this contract read as follows:

"Whereas, a disagreement has...