Wolff v. Hartford Fire Ins. Co.

• Decision Date: 29 June 1920
• Docket Number: No. 16008.,16008.
• Citation: 204 Mo. App. 491,223 S.W. 810
• Parties: WOLFF v. HARTFORD FIRE INS. CO.
• Court: Missouri Court of Appeals

223 S.W. 810

204 Mo. App. 491

WOLFF v. HARTFORD FIRE INS. CO.

No. 16008.

St. Louis Court of Appeals. Missouri.

June 29, 1920.

Rehearing Denied July 22, 1920.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Suit by Paul E. Wolff against the Hartford Fire Insurance Company. Judgment for plaintiff, and the defendant appeals. Reversed and remanded.

Leahy, Saunders & Barth, of St. Louis, for appellant.

Paul U. Farley and James O'Donohoe, both of St. Louis, for respondent.

BECKER, J.

Plaintiff brought suit upon a policy of fire insurance covering his electric automobile, to which policy of insurance was attached a rider under which defendant insured plaintiff against loss through collision. Said policy insured plaintiff's machine in the sum of $1,250 against damages in" excess of $25 from being in collision with another automobile for the period of one year from October 26, 1915. The collision in question occurred on October 8, 1913. Plaintiff's petition alleges a total loss by reason of the collision and prays for judgment in the sum of $1,225, being the full amount of the policy less $25 exempted as aforesaid, with 10 per cent. damages for vexatious refusal to pay and for a reasonable attorney's fee.

Defendant's answer admits the issuance of the policy covering loss against damage by collision in the sum of $1,250, and that plaintiff's automobile was damaged in a collision on the day alleged, but in detail denies that the automobile was totally destroyed, and specifically enumerates the damage that the automobile sustained, and alleges that each and every item of said damage could be repaired or replaced and that when so repaired the automobile would be in as good condition as before the collision, and that the actual cost of repairing and replacing the injured or damaged parts of said automobile was $200, which sum, prior to the trial, the defendant paid into court for the use and benefit of plaintiff as the actual damage and loss sustained. The answer further alleges that the automobile insured under the policy depreciated in value between the issuance of the policy and the date it was damaged, and that at the time of the collision was of the reasonable cash value of $400. The reply was a general denial.

The case was tried to a jury resulting in a verdict in favor of plaintiff on the policy for $500, together with $20 interest; the jury returning nothing for damages for vexatious refusal to pay, nor did they allow an attorney's fee. From the resulting judgment for $520 entered in favor of plaintiff and against the defendant, the defendant in due course appeals.

I. Counsel for appellant contends that the petition of plaintiff, drawn solely on the theory of total loss, contains no allegation as to the value of the property at the time of the injury nor as to the actual damage directly caused by the accident, and therefore does not allege facts sufficient to state a cause of action.

This point is not well taken, for when the defendant issued this policy of insurance sued upon, on the 5th day of November, 1915, in an amount not exceeding $1,250, under section 7030, Revised Statutes of Missouri 1909 (in this connection see Session Acts 1913, p. 380), the value of the automobile at that time must be taken as being $1,633.33. Said section 7030, as it stood at the time of the issuance of this policy, among other things, provided that—

"No company shall take a risk on any property in this state having a ratio greater than three-fourths of the value of the property insured, and when taken, its value shall not be questioned in any proceeding."

This law became part of the policy (Ritchey v. Insurance Co., 104 Mo. App. 146, 78 S. W. 341), and by reason of this section defendant is precluded from denying the value of the automobile at the time the policy was written (Stevens v. Insurance Co., 120 Mo. App. 88, 96 S. W. 684; Weston v. Insurance Co., 191 Mo. App. 282, 177 S. W. 792; Strawbridge v. Insurance Co., 193 Mo. App. 687, 187 S. W. 79). Furthermore, the defendant's answer aided the petition and made an issue as to the value of the automobile at the time of the collision, in that it avers that—

"Between the time said policy was issued and the date it was damaged, as aforesaid, it had greatly depreciated in value, and was, at the time it was in collision and damaged, * " of the reasonable actual cash value of $400."

This plaintiff's reply put in issue, so that the value of the insured property became a substantial issue in the case and the record discloses the parties so treated it. In light of this fact we can but hold, in the language used in Boulware v. Insurance Co., 77 Mo. App. loc. cit. 650, that—

"At all events, when we consider this entire record, petition, answer and the testimony adduced, we think defendant must be treated as having waived the imperfections of the pleading, and the same should be held good enough after verdict."

See Gustin v. Insurance Co., 164 Mo. 172, 64 S. W. 179, and cases therein cited.

II. We next take up the objection made that the several witnesses who were permitted to testify as experts on the question as to whether the automobile could have been repaired, "so as to operate properly as an automobile," were not properly qualified.

Our Supreme Court, in the case of McAnany v. Henrici, 238 Mo. loc. cit. 113, 141 S. W. 636, defines expert testimony as:

"The opinion of a witness possessing peculiar knowledge, wisdom, skill or information regarding a subject-matter under consideration, acquired by study, investigation, observation, practice or experience, and not likely to be possessed by the ordinary layman or an inexperienced person, and consequently who is incapable of understanding the subject under consideration, without aid of the opinion of some person who possesses such knowledge, wisdom, skill, practice or experience; and a person who is competent to give expert testimony is denominated as 'expert witness"'

It is conceded that the question as to whether or not the automobile was or was not a total loss was a proper subject for expert testimony, but counsel for appellant seriously contends that several of plaintiff's "expert" witnesses were not properly qualified to give testimony as experts.

As to witness Maxwell, the record discloses that he was in the automobile salvage business; that he had been engaged in that business foe a period of 2 years prior to the time of the trial and that he had 12 years of experience hi the automobile business; that he was the party who had purchased the car in question from plaintiff prior to the trial and had junked...