189 Mo. App. 464 | Mo. Ct. App. | 1915
This is an action on two policies of fire insurance issued on different dates. The first, which is the basis of the cause of action pleaded in the first count of the petition, insured plaintiff, Grace Fager, against loss or damage hy fire for three years from November 1,1910, in the total sum of $2000, itemized as follows: “$1000 upon the two-story frame building and additions thereto . . . occupied as a dwelling ... in the city of Butler. Also $1000 on household furniture while contained in the above described dwelling. ’ ’ The second policy, issued August
It is alleged in both counts of the petition that the damage to the house was $3500, and in the first count 'that the damage to the household goods was $2700, and as the alleged loss on each class of property was greater than the insurance thereon, plaintiff prayed in each count for the recovery of the full amount of the policy and for statutory penalties for vexatious refusal to pay the loss. The evidence of plaintiff tends to show that the actual damage to each class of property exceeded the insurance thereon, while the evidence of defendant is that the damage was much less and that before bringing suit plaintiff refused to adjust the loss on the personal property on'any other basis than that of the liability of defendant to pay the full amount of the insurance on that property. For a reason, not now important, defendant denied liability for the damage to the house.
In the instructions given at the request of plaintiff, the jury were told “that if you find for the plaintiff on the first count of the petition on account of the loss of personal property by fire you shall assess her damage therefor at the actual cash value of the personal property destroyed by fire, not exceeding one thousand dollars ... in ascertaining the value of the personal property destroyed by fire, if any, you should deduct from the fixed value, the value of any property covered by said policy which was removed
Tbe verdict was for plaintiff on tbe first count for damages in tbe sum of $1675 and for penalties, including attorney’s fee of $267, and on tbe second count for $1400 damages and $240 penalties. Tbe motions for a new trial and in arrest of judgment were overruled and defendant appealed.
Tbe first point argued by counsel for defendant is that each item of insurance in tbe first policy, i. e., tbe two items covering respectively tbe bouse and household goods, was a separate and distinct contract of insurance and “hence plaintiff’s instruction requiring tbe jury to consider and value tbe two as one and apply tbe presumption of value and depreciation as though they were one was erroneous. Each should have been dealt with separately. ’ ’
Obviously where the parties have agreed upon separate valuations of the different subjects of the insurance and thereby have made each class of property a distinct matter of contract (Merrill v. Insurance Co., 73 N. Y. 452) the case should not be put to the jury in the instructions as though the entire insurance were in solido, since, in many instances that would allow the jury to ignore the separate valuations in the policy and award a greater recovery on one class than that allowed by the policy valuation. [Crossan v. Insurance Co., supra.] But we find the instructions given at the instance of plaintiff, from which we have quoted, observed the proper distinction between the two classes of property separately specified and valued in the first policy, gave the jury no opportunity to ignore the different valuations and correctly stated the measure of damages as to each class. The point is ruled against defendant on the ground that the rule invoked was sufficiently followed.
. Further it is argued by defendant that the judgment is excessive for the reason that there was other concurrent insurance on the property covered by the policies in suit, proof of which was offered by defendant, but was rejected by the court on the objection of plaintiff, and that such proof, if received, would have lessened the amount of plaintiff’s recoverable damages.
We agree with defendant that the judgment is excessive in the amount of the penalties assessed for the alleged vexatious refusal of defendant to pay the loss. The jnry found in their verdict that the liability of defendant was materially less on each count ■of the petition than that alleged by plaintiff and sought "to be established by proof, but in plain violation of plaintiff’s own instructions, which told them that defendant should not be penalized if it had reasonable cause to believe that its liability to plaintiff was not as great as she claimed, the jury assessed the penalties, after finding, as a fact, that plaintiff’s demand was excessive. This was error which the court should have corrected on the hearing of the motion for a new trial. The jury were bound to obey the instructions of the court and plaintiff is not entitled to a greater recovery "than they would allow. [Wehringer v. Ahlemeyer, 23 Mo. App. 277; Champ Spring Co. v. Tool Co., 103 Mo. App. 103.]
The instructions properly declared the law. In the recent case of Kahn v. London Assurance Co., 173 S. W. 695, 187 Mo. App. 216, we held that where the ■actual loss of the plaintiff, as ascertained by the jury, was less than she had demanded of the defendant there was no evidentiary basis for the assessment of penalties under section 7068, Revised Statutes 1909.
Upon condition that within ten days from the filing of this opinion plaintiff enter a remittitur of all penalties assessed in the judgment, and interest there