Utz v. Orient Ins. Co.

• Decision Date: 06 December 1909
• Parties: UTZ v. ORIENT INS. CO.
• Court: Missouri Court of Appeals

123 S.W. 538

UTZ v. ORIENT INS. CO.

Kansas City Court of Appeals. Missouri.

December 6, 1909.

1. INSURANCE (§ 378) — CONCURRENT INSURANCE — WRITTEN CONSENT.

Where plaintiff informed defendant's agent of additional insurance at the time the policy in question was taken, the policy was not avoided by a clause making it void if assured had or procured other insurance without the written consent of the insurer first had.

2. EVIDENCE (§ 113) — VALUE — NONMARKETABLE PROPERTY — COST.

In the absence of proof of market value, the cost of nonmarketable property may be shown by proof of the cost, if the price was paid bona fide in the ordinary course of business, and in the absence of unusual circumstances, such testimony being connected by full proof of the present condition of the property or its condition when sold.

3. EVIDENCE (§ 113) — DESTROYED PROPERTY — VALUE — COST.

The original cost of property destroyed is admissible to show its value.

4. EVIDENCE (§ 113) — VALUE — DEPRECIATION.

Where cost is relied on to show the value of nonmarketable or destroyed property, defendant may show the difference in the cost and depreciation in value by use and natural causes.

5. APPEAL AND ERROR (§ 204) — OBJECTIONS BELOW — NECESSITY — OBJECTIONS TO EVIDENCE.

It is too late to object to evidence of value of goods destroyed on the ground that it did not show market value after trial and judgment.

6. TRIAL (§ 76) — RECEPTION OF EVIDENCE — OBJECTIONS — TIME.

An objection to an improper question must be made before answer.

7. INSURANCE (§ 664) — FIRE POLICY — INVALIDITY — DEFENSES — RETURN OF PREMIUM.

Where an insurance company denied liability on the theory that the policy was void because of other insurance not consented to in writing, evidence that the company had never returned or offered to return any part of the premium was admissible.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Michael Utz against the Orient Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Reed, Atwood, Yates, Mastin & Harvey and Neville & Grier, for appellant. Brewster, Ferrell & Mayer and Culver & Phillip, for respondent.

BROADDUS, P. J.

This is a suit on a policy of insurance for a loss occasioned by a fire. The policy covered insurance on a house for $800, and on furniture for $200. At the time the policy was issued, the house was further insured in the sum of $700 in the Insurance Company of North America, also the further sum of $500 on the household goods including musical instruments in the Teutonia Insurance Company, and also the further sum of $300 on a piano alone in the Insurance Company of North America. The policy in suit provides that the same shall be void if the assured has or procures other insurance on the property described, without the written consent of the insurer shall have first been obtained. The defendant interposed this provision as a defense against plaintiff's right to recover. Plaintiff by his reply, among other things, alleges that at the time of the issuance of said policy in suit defendant was informed that there was other insurance. Plaintiff claimed the statutory penalty for vexatious delay in avoiding payment of the loss. The judgment was for plaintiff for his loss, and the penalty added. At the instance of the...