Petrovic v. Standard Fire Ins. Co. of Hartford, Conn.
Citation | 167 S.W.2d 412,237 Mo.App. 290 |
Parties | Michael Petrovic and Mildred Petrovic, Respondents, v. Standard Fire Insurance Company of Hartford, Connecticut, a Corporation, Appellant |
Decision Date | 11 January 1943 |
Court | Court of Appeals of Kansas |
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.
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:
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:
Defendant's answer further sets forth contract between the parties,...
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