28 S.W.2d 423 | Mo. Ct. App. | 1930
Lead Opinion
The first question raised in defendant's assignment of errors is that there was a fatal defect of parties plaintiff. We think this point was waived by defendant. The defect, if any, clearly appears on the face of the petition, and, under our code, should have been taken advantage of by demurrer. [Sec. 1226, R.S. 1919.] Such defect is waived when defendant fails to demur but joins issue by answer. [Flint v. Sebastian,
But in any event, plaintiff could maintain this action in his own name. Until the mortgage was paid he occupied the position of trustee of an express trust for the benefit of the Indemnity Company and recovery by him would constitute a bar to any further suit on the policy. [Anthony v. Insurance Co.,
It is unnecessary to set forth more than a mere summary of the facts, as to which plaintiff and defendant are practically in agreement. Plaintiff had paid but one installment on the car and was in default. There can be no doubt the National Bond Investment Company had the right to demand the possession of the car, under their mortgage and defendant, in so far as this record shows, was guilty of no wrong in delivering possession to such Investment Company. The evidence indicates the car was thereafter sold, under foreclosure sale, and brought the sum of $241 and that the net proceeds was $196.31. There was also evidence that the car was worth the full list price at the time it was stolen and, we think, defendant's original liability after the theft was therefore the full amount of the policy, to-wit: $324.
By plaintiff's instructions the jury was authorized to render a verdict for this full amount, with no reduction on account of the money received from the sale of the car and applied to plaintiff's debt. Under no theory was plaintiff entitled to recover the full amount of the policy and leave out of consideration the reasonable value of the car at the time it was taken from defendant. Without further discussing the instructions, it is our opinion that the measure of damages should be based upon the reasonable cash value of the *454 car at the time it was stolen, not exceeding the amount of the insurance, less the reasonable value of the car at the time it was taken from defendant. [Finn v. Indemnity Company, 297 S.W. 175.]
The reasonable value of the car, including accessories to the amount of $56, was, according to plaintiff, $475 at the time it was stolen. Plaintiff was not entitled to recover for accessories not covered by the policy. The reasonable value at the time the car was stolen would, therefore, be $475 less the sum of $56, or $419, which was almost the exact value set forth in the insurance policy. While the evidence is not clear as to the reasonable value of the car at the time it was recovered, the amount received at the mortgage sale was some evidence of its reasonable value at the time it was taken from defendant's possession. [State v. Jacob,
This amount was $241. The costs of the sale are not to be considered since defendant was not responsible for such sale. Deducting from the reasonable value of the car at the time it was stolen, the amount received from the sale of the car, to-wit: $241, we have a difference in plaintiff's favor of $178, which is the limit of the amount to which he was entitled. The difference between that sum and the amount of the verdict is $146. It is therefore our opinion that if plaintiff will remit the sum of $146 within ten days from the rendition of this opinion, the judgment shall be affirmed; otherwise, it should be reversed and remanded for new trial. It is so ordered. Cox, P.J., andSmith, J., concur.
Addendum
The point is also made that defendant was entitled to credit for the sum of $73.61, paid the National Bond Investment Company for expense in recovering the car. We do not consider this to be a *455 proper deduction in defendant's favor because this amount was expended in recovering the car and not in payment of any amount of insurance due. It is our order that if plaintiff will remit the sum of $241, within ten days from the filing of this opinion, the judgment will be affirmed, otherwise it will be reversed and remanded.
The motion for rehearing is overruled. Cox, P.J., and Smith,J., concur.