Winter v. Elder
| Decision Date | 05 March 1973 |
| Docket Number | No. 25876,25876 |
| Citation | 492 S.W.2d 146 |
| Parties | Larry M. WINTER, Plaintiff-Appellant, and Essie M. Winter and Ernest Winter, her husband, Plaintiffs, v. Linda J. ELDER, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Sandra H. Poehlman, Platte City, for plaintiff-appellant.
Downs & Pierce, Don Pierce, St. Joseph, for defendant-respondent.
Plaintiffs were a passenger who sued for personal injuries and the driver who sued in a separate count for property damage and for loss of use of the vehicle during the repair. The trial court submitted the count for personal injury to the passenger and a jury verdict was returned in favor of the plaintiff on that count. The trial court dismissed the count for property damage and for loss of use before submission to the jury.
The driver-plaintiff appeals contending his claim was properly pleaded and proven, and that he was entitled to a submission of the claim to the jury.
Defendant counters by first asserting the plaintiff has 'released' his claim because the repairs to the vehicle were paid for by plaintiff's collision carrier and defendant's liability carrier had reimbursed the collision carrier for the amount of the repairs less the deductible amount on plaintiff's policy of $50, a total payment of $1,685.08.
No evidence of assignment in any form was offered, nor is there any evidence of a release of the plaintiff's claim. Defendant offered the evidence of payment prior to voir dire by an adjustor for the liability carrier who testified that the amount of the repair bill, less the $50, or $1,685.08, had been paid to the collision carrier. In the abbreviated transcript, no motion appears, but the trial court 'denied the motion' at the conclusion of this testimony from which it may be inferred the court had been requested to strike the pleadings asking for property damage and that this evidence was offered in connection with that pre-trial motion.
The defendant now urges this pre-trial testimony as creating a 'favorable inference' that plaintiff had released his claim. No such inference may be drawn from the testimony which relates entirely to payment between two insurers. In any event, the issues of a release or payment are affirmative defenses, and the burden of proving such affirmative defenses is on defendant. Section 509.090 RSMo 1969, V.A.M.S. MAI 3.01 and Committee Comment. Hartley v. Oidtman, 410 S.W.2d 537 (Mo.App.1966), l.c. 545.
Defendant next contends that there was no evidence that plaintiff had been damaged since plaintiff's evidence showed only $1,200 damage and a larger sum had been paid.
MAI 4.02 and the Committee's Comment thereto plainly indicate that plaintiff may recover for diminution in value after repair. The cases cited in the Committee Comment, and particularly Hayes v. Dalton, 257 S.W.2d 198 (Mo.App.1953), l.c. 201, provide sound support for that...
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...Minn. 23, 40 N.W.2d 834 (1950); National Dairy Products Corporation v. H.G. Jumper, 241 Miss. 339, 130 So.2d 922 (1961); Winter v. Elder, 492 S.W.2d 146 (Mo.Ct.App.1973); Hatch v. Heim, 200 Neb. 735, 265 N.W.2d 444 (1978); Fanfarillo v. East End Motor Company, 172 N.J.Super. 309, 411 A.2d 1......
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...for the loss of use of his Rabbit, which is compensable damage. Stallman v. Hill, 510 S.W.2d 796, 798 (Mo.App.1974); Winter v. Elder, 492 S.W.2d 146, 148 (Mo.App.1973). Plaintiff can only recover for the time that was reasonably necessary to repair the property or the time necessary in the ......
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Barton v. Snellson, 50748
...In the latter instance, the release or settlement agreement is simply asserted as an affirmative defense. See, e.g. Winter v. Elder, 492 S.W.2d 146, 148 (Mo.App.1973). However, this Court has held a settlement agreement reached in a pending case may be enforced by a motion filed in that cas......
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