Strawbridge v. Standard Fire Insurance Co.

• Decision Date: 12 June 1916
• Parties: PARSON W. STRAWBRIDGE, Respondent, v. STANDARD FIRE INSURANCE COMPANY, HARTFORD, CONN., Appellant
• Court: Kansas Court of Appeals

187 S.W. 79

193 Mo.App. 687

PARSON W. STRAWBRIDGE, Respondent, v. STANDARD FIRE INSURANCE COMPANY, HARTFORD, CONN., Appellant

Court of Appeals of Missouri, Kansas City

June 12, 1916

Appeal from Jackson Circuit Court.--Hon. Frank G. Johnson, Judge.

AFFIRMED (conditionally).

Fyke & Snider for appellant.

Ed E Yates for respondent.

OPINION

TRIMBLE, J.

--Plaintiff sued upon an insurance policy covering an automobile. The policy insured plaintiff against direct loss or damage by fire to an amount not exceeding $ 1500 upon one Auburn automobile, factory number 1428, gasoline, four cylinder touring car, model 1910. There was a provision in the policy that:

"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 reduction for depreciation, however, caused."

The policy was for one year from July 24, 1912. Shortly after midnight on July 10, 1913, lacking a few days of being a year after the policy was written, the machine burned while in use on the road in Dallas county. The petition alleged that the car was burned and destroyed by fire and was wholly lost to the plaintiff, save that the wreckage left from said fire was thereafter sold by plaintiff for the sum of fifty dollars which was the reasonable value thereof."

The suit was for $ 1450 (being the full amount of the policy less the $ 50 received for the wreckage), with interest at six per cent from September 15, 1913, for an attorney's fee of $ 200 and for ten per cent of the loss as a penalty for vexatious refusal to pay. The jury returned a verdict for $ 1551.50 for the loss and assessed an attorney's fee at $ 150 but made no allowance for, and said nothing about, a penalty. The defendant has appealed claiming that the court erred in matters respecting the determination of the question of the amount of plaintiff's loss, and also the allowance of the attorney's fee. With reference to the question of plaintiff's loss, it is claimed by defendant that plaintiff offered no evidence whatever upon the value of the automobile at the time of the fire, and that the court erroneously excluded defendant's evidence offered to show the depreciation in value of the automobile at the date of its destruction.

Section 7030, Revised Statutes 1909, provides that:

"No company shall take a risk or any property in this State at a ratio greater than three-fourths of the value of the property insured, and when taken, its value shall not be questioned in any proceedings."

It has been frequently held that this section goes no further than to conclusively establish the value of the automobile at the date of the policy. And, where the property insured is personalty of a changing character which is subject to diminution or depreciation, and the policy provides, as in this case, that the insurer shall not be liable beyond the actual cash value of the property at the time of the loss, the extent of the insured's demand and of the insurer's liability is, in the case of a total loss, the value of the property at the time of its destruction by fire, and this question of the value of the property at the time of the fire is open to dispute and litigation. [Burge Bros. v. Greenwich Ins. Company, 106 Mo.App. 244, 80 S.W. 342; Surface v. Northwestern Ins. Co., 157 Mo.App. 570, 139 S.W. 262; Non-royalty Shoe Co. v. Phoenix Assurance Assn., 178 S.W. 246.] And, in cases where the insurance is on personal property of a changing character or which is liable to depreciation from use, or injury, the burden is on the plaintiff to show the value of the property at the time of the fire. [Sharp v. Niagara Fire Ins. Company, 164 Mo.App. 475, 147 S.W. 154.]

But in this case, we think the plaintiff did furnish evidentiary facts from which the jury could find that the machine was worth at least all that the plaintiff was demanding. It is true plaintiff offered no evidence expressly stating, in dollars and cents, the value of the automobile at the date of the fire. He did say, however, that "the machine was in fine condition so far as I know at the time of the fire, the only repairs ever made on the machine was to tighten up the engine, which I did myself, and tires." Now, by virtue of the statute, section 7030 aforesaid, the value of the automobile, on July 24, 1912, the date of the policy, was fixed, not at $ 1500 the amount of the policy, but at $ 2000, since, under the statute, the $ 1500 was only three-fourths of the machine's value. With the value of the machine on July 24, 1912, conclusively fixed at $ 2000, the only diminution on the value thereof, which could be considered in determining the loss for which payment can be demanded as insurance, is the inherent depreciation in the machine itself through use, injury, or damage, accruing to it subsequent to the date of the policy. And such diminution must be deducted, not from the $ 1500, but from the value of the machine, as fixed by the statute and the policy, namely, $ 2000. [Spickard v. Fire Association of Philadelphia, 164 Mo.App. 1, 146 S.W. 808, l. c. 4; Stevens v. Norwich etc. Ins. Co., 120 Mo.App. 88, 106-108, 96 S.W. 684.] The evidence was that the machine was not used but was put away during the months between December 1, 1912, and April 1, 1913, though used the rest of the time elapsing since the policy was issued. If now the machine was worth $ 2000 July 24, 1912, and was not used during the winter months and in fine condition on July 10, 1913, the date of the fire, this was a sufficient showing of facts from which the jury could infer that the machine, on the day it burned, was worth all that the plaintiff was demanding because they could say a machine run only in the summer months, and put away and housed during the winter months, and in fine condition needing no repairs except tires which it got, would not depreciate from use or damage, inherent in the machine, to the extent of $ 500 or more than that, which it would be necessary to find in order for the loss to fall below what plaintiff was demanding. In other words, even if the depreciation subsequent to the date of the policy amounted to twenty-five per cent, which would be $ 500, still this deducted from the $ 2000 would not reduce plaintiff's loss below the face of the policy, nor show it to have been less than the amount he was demanding. According to the evidence of defendant, the depreciation subsequent to the policy was this precise amount, namely, twenty-five per cent. So that, according to defendant's evidence, the loss did not fall below the amount demanded.

As to the evidence which defendant claims was erroneously excluded the record shows that plaintiff's counsel expressly stated...