William H. Pannell (insured) sued Missouri Insurance Guaranty Association (association) for damages arising from theft of his automobile under the comprehensive coverage of a “Family Combination Automobile Policy” issued by Missouri General Insurance Company (company), the latter having become insolvent and placed in receivership. In addition to damages claimed under the policy, insured also sought damages and reasonable attorney’s fees against the association' for vexatious delay pursuant to Section 375.420, RSMo 1969.
Commencing on January 31, 1977, and concluding on February 3, 1977, the case was tried to a jury which, by its verdict, found for the insured and assessed damages in his favor in the amount of $3,850.00 under the policy plus $577.50 as prejudgment interest, and the further sums of $385.00 as' a penalty and $4,000.00 as an attorney’s fee pursuant to Section 375.420, supra. The court entered judgment in favor of the insured and against the association in the amount of $8,812.50, the aggregate sum assessed by the jury in its verdict. The association, after its motions for judgment notwithstanding the verdict and new trial were overruled, timely appealed.
Setting forth the points relied on by the association on appeal will be deferred until a factual background against which they must be measured has been laid. Until then, it is impossible to intelligibly relate to them because at this juncture they rest in an academic, abstract context.
On July 18,1972, the insured purchased a 1971 Cadillac Coupe DeVille from B & G Motor Co. of K.C., Inc., Kansas City, Missouri. The purchase price was $5,400.00. Insured paid $1,000.00 down and financed the remainder through the seller, B & G Motor Co. of K.C., Inc., who shortly thereafter endorsed the note and assigned the security agreement concerning the unpaid balance to the Southside Bank of Kansas City (bank). At the time of the sale the automobile was titled in the name of B & G Motor Co. of K.C., Inc., and it assigned the certificate of title (Missouri) to the insured. The insured was living at 1327 Waverly, Kansas City, Kansas, at the time. Consequently, insured undertook to have the automobile registered in Kansas, and to obtain Kansas license plates for it. Insured was unsuccessful in doing so because he lacked the funds necessary for registering and licensing the automobile in Kansas. Not to be thwarted by a lack of funds, the insured borrowed some license plates from his brother which had been obtained for another automobile and placed them on the automobile purchased from B & G Motor Co. of K.C-, Inc. The record fails to disclose
At some undisclosed point of time the insured moved from Kansas to Missouri and on July 9, 1974, was living at 5323 Myrtle, Kansas City, Missouri. On July 9, 1974, at approximately 10:00 A.M., the insured went to visit a girl friend who was living in a two bedroom apartment at 3241 McGee, Kansas City, Missouri. The girl friend shared the two bedroom apartment, with her brother, and at the time the brother shared his bedroom with a male friend named Michael White. The insured’s girl friend was totally lacking in knowledge as to whether or not Michael White had a “criminal record” or had ever been in any kind of trouble.
When the insured arrived at the apartment he parked his automobile (the 1971 Cadillac Coupe DeVille) and locked it. Upon entering the apartment the insured and his girl friend drank some coffee in the kitchen of the apartment,- at which time insured placed the keys to his automobile on a kitchen table. A short time later both went into the girl friend’s bedroom where they, fell asleep. The keys to the automobile were left on the kitchen table. When the two entered the bedroom the brother of the female acquaintance was away at work and Michael White was in the brother’s bedroom with the door closed. Sometime between 12:00 noon and 1:00 P.M. insured’s girl friend awakened, left the bedroom, and looked out a balcony window of the apartment in the direction of where the insured usually parked his automobile. Failing to see the insured’s automobile, she awakened the insured and he confirmed that he had parked his automobile in the usual place. Upon receipt of this information she again looked out the balcony window and confirmed her suspicion that the insured’s automobile was gone. She then went to her brother’s bedroom to ask Michael White “about it” and discovered that he had left and taken all his clothes with him. A check of the kitchen table revealed that the keys to the insured’s automobile were missing.
The police were immediately called and they arrived at the apartment around 3:00 P.M. and interviewed both the insured and his girl friend. In addition to certain basic information regarding the automobile and attendant circumstances surrounding its disappearance, the insured informed the investigating police officers that Michael White did not have permission to drive the 1971 Cadillac Coupe DeVille and that Michael White had apparently removed the keys from the kitchen table and taken the automobile. The officer in charge prepared a stolen vehicle report which the insured signed. Contained therein was an affirmation that insured was “aware of the fact that it was unlawful to make a false report to a Police Officer”, that the information set forth was “trúe and correct”, and that he (insured) would “assist in the prosecution of any person or persons responsible for the. theft” of the “described motor vehicle”. In addition, the insured orally reaffirmed to the investigating officers that he would assist in the prosecution of the person responsible for the theft of his automobile.
On the same day, to wit, July 9, 1974, insured contacted the company by phone and reported that his automobile had been stolen. In addition, on July 9, 1974, the insured reported the theft to his insurance agent, and the latter completed “a proof of claim form” 1 and mailed the same to the company (apparently on July 9, 1974) advising that insured’s 1971 Cadillac Coupe De-Ville had been stolen on July 9, 1974.
On or about July 10, 1974, insured’s girl friend called Michael White’s sister in Baton Rouge, Louisiana, and was informed that Michael White was in Burlington, Kansas. Other evidence revealed that Michael White was in custody of the police in Burlington, Kansas, for failing to pay for some gasoline obtained at a service station in Burlington, Kansas. Michael White’s whereabouts was conveyed to the insured and he made a trip to Burlington, Kansas, in an effort to recover his stolen automobile. Through some unexplained mix-up Michael White and the stolen automobile
On August 2,1974, Miss Gray, an adjuster for the company, contacted the insured by phone and took a recorded statement from him concerning the theft loss. A transcript of the recorded statement was offered and admitted into evidence as an exhibit upon the stipulation of both parties that it was “a transcript of the telephone call” and “conversation” that ensued between the insured and Miss Gray on August 2, 1974. By way of a general summarization, the “transcript” disclosed the following: the insured was the owner of a 1971 Cadillac Coupe DeVille, tudor hardtop with a black top and a white bottom, which was stolen on July 9, 1974, while parked at his girl friend’s apartment; details surrounding the circumstances of the theft and insured’s attempt to recover the automobile in Burlington, Kansas, corresponded to those previously set forth in this opinion; the stolen automobile was equipped with air-conditioning, power steering, power brakes, automatic door locks and windows, AM-FM radio, built in tape, and General tires, purchased the previous year at a cost of approximately $80.00 per tire, with roughly 10,000 miles on them at the time the automobile was stolen; there was a dent in the front left fender of the automobile which the company had previously reimbursed the insured for in the amount of $322.00; and the odometer reading on the automobile at the time it was stolen was approximately 60,000 miles.
On August 13,1974, a loan officer for the bank which had purchased the dealer paper on the 1971 Cadillac Coupe DeVille called the company and made inquiry of Miss Gray as to when the theft loss claim was going to be paid. She informed the bank’s loan officer that the company needed more information and that the claim would then have to be presented to their claims committee to determine any loss. Miss Gray did not explicate as to what additional information was needed.
The insured had three or four additional conversations with Miss Gray, the dates of which are not revealed by the record, and during the course of the last conversation Miss Gray informed the insured that he didn’t have a claim because his automobile had not been stolen.
On October 17,1974, the FBI notified the bank’s loan officer that the 1971 Cadillac Coupe DeVille had been located at Dealers Wrecker Service in Baton Rouge, Louisiana. This information was passed on to the insured who, in turn, passed the information on to Miss Gray, the company’s adjuster. On November 5, 1974, the insured, at the direction of the bank’s loan officer, sent a letter to Dealers Wrecker Service in Baton Rouge, Louisiana, advising that the 1971 Cadillac which they were holding belonged to him and had been stolen in Kansas City. Attached to the letter was a cashier’s check in the amount of $215.00 to pay for towing and storage costs incurred against the automobile.
The company called the bank on November 8, 1974, and received the address of Dealers Wrecker Service in Baton Rouge, Louisiana, and advised that they were going to turn the matter over to an adjuster in the Baton Rouge, Louisiana, area. On November 11, 1974, Wilson Appraisal Service of Baton Rouge, Louisiana, inspected the 1971 Cadillac Coupe DeVille at Dealers Wrecker Service and prepared a report in the form of a repair estimate which was mailed to the company.
By a letter dated November 11, 1974, addressed to the bank, Dealers Wrecker Service advised that additional proof of ownership of the 1971 Cadillac Coupe De-Ville was required before it would release the automobile. Enclosed with this letter was a copy of a report from the Louisiana State Patrol, Auto Theft Unit, advising that they could find no record of registration of vehicle # 683471Q120973 (the 1971 Cadillac Coupe DeVille’s vehicle’s identification number) in the States of Louisiana, Kansas and Missouri.
On November 13, 1974, the bank mailed certified copies of its security agreement and the Missouri Certificate of Title which B & G Motor Co. of K. C., Inc., had assigned
The insured offered and had admitted into evidence certified copies of the following records of the United States District Coiirt, Middle District of Louisiana: (1) an indictment charging that Michael White “did conceal a stolen motor vehicle, that is a 1971 Cadillac, VIN 683471Q120973, which was part of and constituted interstate com-: merce, knowing that the vehicle was stolen; all in violation of Title 18, Section 2313”; and (2) Michael White’s plea of guilty to the charged offense, and the judgment and sentence entered and pronounced thereon.
The insured testified as to the condition of his 1971 Cadillac Coupe DeVille as of July 9,1974, and that its “worth” as of that date was $4,000.00. The bank’s loan officer testified that the automobile’s “value” as of the date it was stolen was “$3,700.00 to $3,900.00.”
The insured’s attorney took the stand and testified as to the number of hours of time expended on the insured’s behalf, as well as the nature of his services. Expert testimony as to the reasonable value of insured’s attorney’s services was also offered.
The insured’s attorney further testified that he was retained by the insured in January of 1975, and that he contacted the company’s claims department during the latter part of January, 1975, and was advised that the company didn’t “feel the car was stolen and they weren’t going to pay the claim”. The insured’s attorney filed suit on behalf of insured against the company on May 29, 1975.
After the company went into receivership, and more particularly on June 11, 1976, the insured filed a formal claim against the association for theft of his automobile. On December 9, 1976, by leave of court, the association was added as an additional party defendant. The company was eventually dropped as' a party defendant and on January 31,1977, the case proceeded to triál solely against the association.
A claims adjuster for another insurance company, who was on “loan” to the association to handle claims. resulting from the insolvency and liquidation of the company, testified on behalf of the association that he first became acquainted with the insured’s claim in early December of 1975. In the latter part of September or the early part of October, of 1976 he received the company’s file pertaining to the insured’s claim.. Among other things, it contained a transcript of the August 2, 1974, recorded telephone conversation which had ensued between the insured and Miss Gray, the company’s adjuster, and certified copies of records of the Federal District Court, Middle District of Louisiana, supra, appertaining to Michael White. During October of 1976, the “loaned” adjuster exchanged views with the attorney representing the company and, at the attorney’s suggestion, the latter was authorized to and did make the following settlement offer to the insured: $585.00 for damages to the automobile, the amount of the storage charges incurred with Dealer’s Wrecker Service, and a reasonable amount representing expenses which would have been incurred by the insured had he gone to Louisiana to pick up the automobile. The “loaned” adjuster also verified testimony previously given by the insured’s attorney that the aggregate amount of the offer represented payment of only. 75% of the value he placed on the claim. The “loaned” adjuster further testified that he was not convinced that the automobile had in fact
• Some of the issues raised by the association on appeal point up the advisability of making limited, but nevertheless specific, reference to certain allegations contained in various pleadings of the respective parties. In paragraph 6 of his “First Amended Petition on Insurance Contract” the insured alleged that [p]laintiff [the insured] has given due notice of said loss and said claim to [the company]”. In its answer the association alleged that the insured’s petition “fails to state a claim showing that . . . [insured] is entitled to any relief against . [association]” and further alleged that “. . . [insured] has failed to comply with any of the provisions of any policy of insurance issued to [insured]”. No reply was filed by the insured. Insofar as the formal pleadings are concerned these are the only allegations pertaining to insured’s compliance or lack of compliance with any of the “conditions” of the policy issued by the company.
The appropriate time has now arrived to set forth the points relied on by the association on appeal. The association, drawing upon the status of the evidence and pleadings heretofore outlined, raises five multiple-part points on appeal. They project a farrago of procedural, substantive, and evidential issues in a highly convoluted manner by virtue of repetitiously asserting them in all three contexts. In order to present a more discernible view of the issues raised on appeal, and to facilitate a better grasp of them for dispositional purposes, this court, particularly after seining the argument portion of the association’s brief, has taken the liberty of rewording and recasting them, without elaboration, into nine separate points, to wit: (1) error on the part of the trial court “in overruling” the association’s “motion for judgment notwithstanding the verdict” because insured’s petition failed'to state a claim upon which relief could be granted in that insured failed to plead, specifically or generally, that he had complied with policy Condition 8(b) (proof of loss), or to plead any facts relieving him of compliance therewith; (2) error on the part of the trial court “in overruling” the association’s “motion for judgment notwithstanding the verdict” as “all the evidence showed as a matter of law” that insured had not complied with policy Condition 8(b) (proof of loss) nor policy Condition 8(a) (duty to protect); (3) error on the part of the. trial court in submitting the issue of “vexatious refusal to pay” to the jury because the association was not subject to the provisions of Section 375.-420, RSMo 1969;
3
(4) error on the part of the trial court in giving insured’s principal verdict directing instruction (Instruction No. 3) because it failed to require the jury to find that insured had complied with policy Condition 8(a) (duty to protect); (5) error on the part of the trial court in refusing to give association’s requested Instruction No. D defining “theft or larceny” because the same are technical terms; (6) error on the part of the trial court in giving insured’s requested measure of damages instruction (Instruction No. 5) because said instruction deviated from MAI 4.02 (“Measure of Damages — Property Only”) in that it cast the measure of damages in terms of “actual cash value” rather than in terms of “fair market value”; (7) error on the part of the trial court in giving insured’s requested measure of damages instruction (Instruction No. 5) in that it erroneously permitted the jury to award prejudgment interest from the date of the loss on any amount awarded to insured under the theft coverage of the policy; (8) error on the part of the trial court in refusing to grant association’s request to pass and circulate to the
Relying upon
Harding v. State Farm Mutual Automobile Ins. Co.,
The principal holding in
Harding v. State Farm Mutual Automobile Ins. Co., supra,
is, in a sense, capsulated at
In the instant case the averment in association’s answer that “[pjiaintiff [insured] has failed to comply with any of the provisions of any policy of insurance issued to plaintiff [insured]”, via the doctrine of aider, generally injected the issue of insured’s performance vel non of the policy conditions for jurisdictional purposes. The fact that insured filed no reply to the association’s answer is of no moment as he was not required to do so under Rule 55.01 and the association’s averment of non-compliance was deemed denied by operation of Rule 55.09.
Valleroy v. Southern Railway Company,
The association contends under Point (2) that the trial court erred in overruling its motion for judgment notwithstanding the verdict as “all the evidence showed as a matter of law” that insured had not complied with policy Condition 8(b) (proof of loss) nor policy Condition 8(a) (duty to protect). The insured, notwithstanding the frail nature of his petition, argues that compliance vel non with the respective policy conditions was not in issue as the association failed to deny performance thereof “specifically and with particularity” as required under Rule 55.16. Recalling that the insured’s infirm pleading was saved by the doctrine of aider, paradoxically, the association’s allegedly infirm pleading is saved by Rule 55.33(b) which sanctions the amendment of pleadings by the evidence. A plethora of evidence was introduced by both the insured and the association without objection during the course of the trial germane to the issues of compliance vel non with policy Conditions 8(b) (proof of loss) and 8(a) (duty to protect), as well as evidence which would excuse the insured from strict compliance. Consequently, both aspects of the association’s second point will be substantively addressed.
The association asserts, albeit correctly, that the record conclusively demonstrates that the insured failed to submit a formal proof of loss concerning the theft of his automobile in compliance with policy Condition 8(b) (proof of loss). The duty imposed upon an insured to plead compliance with a condition precedent of a policy of insurance in order to state a cause of action against an insurer under a policy as enunciated in
Harding v. State Farm Mutual Automobile Ins. Co., supra,
is somewhat difficult to reconcile with an extant line of cases which hold that non-compliance with certain conditions precedent contained in a policy of insurance does not defeat recovery under a policy unless the insurer is prejudiced thereby and, if so, the issue of prejudice takes on characteristics of an affirmative defense which the insurer must shoulder the burden of proving. With respect to an insured’s undisputed failure to submit a sworn proof of loss under a fire and windstorm policy of insurance, the St. Louis Court of Appeals in
Schultz v. Queen Insurance Company,
Northwestern Mut. Ins. Co. v. Independence Mut. I. Co.,
Schultz v. Queen Insurance Company, supra, and Greer v. Zurich Insurance Company, supra, make it apparent that the dispositional basis for the first aspect of Point (2) may be reduced to a determination of whether there was any evidence that the association was prejudiced by insured’s failure to file a formal proof of loss as required by Condition 8(b) of the policy. Reliance upon this narrow basis is eminently justified as both Schultz and Greer support the proposition that insured’s failure to file a formal proof of loss as required by Condition 8(b) of the policy would not exonerate the association from liability absent proof by it that it was prejudiced by insured’s failure to do so. After thoroughly probing the record, this court has failed to find even a scintilla of evidence which directly or circumstantially suggests, much less proves, that the association was prejudiced by the insured’s failure to file a formal proof of loss. Conjunctively, the association has never suggested nor argued, either below or on appeal, that it was in any way prejudiced by the insured’s failure to file a formal proof of loss. Under the authority of Schultz v. Queen Insurance Company, supra, and Greer v. Zurich Insurance Company, supra, the first aspect of the association’s second point on appeal is found to be wholly without merit. 5
Condition 8 of the policy of insurance in question is captioned “Insured’s Duties in Event of Loss — Part III”. “Coverage G— Theft” is included under Part III of said policy. More particularly, Condition 8(a) of said policy reads as follows: “In the event of loss the insured shall: (a) protect the automobile, whether or not the loss is covered by this policy, and any further loss due to the insured’s failure to protect shall not be recoverable under this policy; reasonable expenses incurred in affording such protection shall be deemed incurred at the company’s request;”. The association appears to contend that the insured violated Condition 8(a) of the policy by not pursuing, protecting and retrieving his automobile after it was located in Baton Rouge, Louisiana. Nevertheless, the association has failed to cite any authority to support its position that a policy condition such as 8(a) (duty to protect) is applicable to theft coverage afforded under a policy of automobile insurance. Although reasons for its applicability to other coverages extended under an automobile insurance policy for “Physical Damage” are conceivable by reason of an insured’s possession of a damaged automobile, it is difficult to conceive that it was intended to apply to theft coverage because of the inescapable fact that an insured is no longer in possession of the automobile in the sense just mentioned. However, assuming ar-guendo that policy Condition 8(a) (duty to protect) is applicable to a theft loss, limited or otherwise, this court will proceed to address the final aspect of Point (2) in the tenor in which it is raised by the association.
As subsequently demonstrated, Condition 6 applicable to “Part III — Physical Damage” (Coverage G — Theft) of the policy, which reads in part as follows, bears consideration: “No action shall lie against the company . . under Part III, until thirty days after proof of loss is filed and the amount of loss is determined as provided in this policy.” It should be mentioned that neither the company nor the association contended, nor did the association attempt to prove, that the insured failed to submit to any procedure provided in the policy for determining the amount of the loss.
Although neither party has cited, and this court’s independent research has failed to locate, any Missouri cases so holding, this court on its own initiative has “ferreted” out several hoary cases from other jurisdictions which hold that the insured-owner of a stolen automobile need not pursue and attempt to retrieve it after right of payment from the insurer accrues. See:
O’Connor v. Maryland Motorcar Ins. Co.,
Unfortunately, at this point there is no way to avoid returning to the vexing question of the insured’s failure to have filed a formal proof of loss as submission of a proof of loss triggered computation of the time when the insured’s right to sue accrued, and, concomitantly, when his purported duty to pursue and protect the stolen automobile ceased.
Although no Missouri cases have been cited, or found, broaching or advancing the doctrine or principle of substantial compliance with a condition precedent contained in a policy of insurance requiring the filing or submission of a formal proof of loss,
6
it is far from, a novel doctrine or principle in other jurisdictions. See:
Truck Insurance Exchange v. Hale,
The purpose which proofs of loss are designed to serve has previously been the subject of judicial discussion in this state. The court in
Hughes v. Patriotic Ins. Co.,
The association complains by way of Point (3) that the trial court erred in submitting the issue of “vexatious refusal to pay” to the jury because it was not subject to the provisions of Section 375.420, RSMo 1969.
7
It should be emphasized that insured’s claim of “vexatious refusal to pay” was predicated and submitted to the jury solely upon the association’s conduct after it entered the picture and not on any conduct of the company. The answer to this issue is to be found both in Section 375.420,
supra,
and certain highly relevant statutory provisions applicable to the Missouri Insurance Guaranty Association. Section 375.420,
supra,
reads as follows: “In any action against any
insurance company
to recover the amount of any loss under a policy of fire, cyclone, lightning, life, health, accident, employers’ liability, burglary, theft, embezzlement, fidelity, indemnity, marine or other insurance, if it appear from the evidence that such company has vexatiously refused to pay such loss, the court or jury may, in addition to the amount.thereof and interest, allow the plaintiff damages not to exceed ten percent on the amount of the loss and a reasonable attorney’s fee; and the court shall enter judgment for the aggregate sum found in the verdict.” (Emphasis added.) Collaterally, “insurance company” as used in Section 375.420,
supra,
is defined in Section 375.012(4), RSMo 1969,
Even if the statutorily mandated duties and obligations of the association could be said to bear some semblance to “transacting or doing the business of insurance”, it is crystal clear that the statute (Section 375.-785, RSMo 1978) which sired the association by the same token insulated it from the application of Section 375.420 (damages and attorney’s fees for “vexatious” refusal to pay),
supra,
insofar as its own conduct was concerned. It is clear that the limits of the association’s liability are tightly drawn by the legislation which created it. Relevant statutory provisions contained in Section 375.785,
supra,
from which this conclusion is drawn, are unambiguous and their application rather than their construction is all that is involved. The association is “deemed” an “insurer” only “to the extent of its obligations on covered claims.” Subsection 4(l)(b) of Section 375.-785,
supra.
“Covered claim” is defined as “an unpaid claim . . . which arises out of
and is within the coverage of an insurance policy
to which this section applies issued by a member insurer, if such insurer becomes an insolvent insurer . . ”. Subsection 3(2) of Section 375.785,
supra.
(Emphasis added.) Subsection 4(l)(a) of Section 375.785,
supra,
provides in part that “[i]n no event shall the association be obligated to a policyholder or claimant in an amount in excess of the face amount
8
of the policy from which the claim arises.” Perhaps motivated by excessive caution, the legislature saw fit to place beyond the realm of doubt that the limits of the association’s liability were even more tightly-drawn with respect to the precise issue tendered by Point (3), i.e., that the association was not subject to Section 375.420,
supra,
for its own conduct in the handling of claims, by expressly providing that “[tjhere shall be no liability on the part of and no
Point (4) is next in order, i.e., that the trial court erred in giving insured’s principal verdict directing instruction, Instruction No. 3, because it failed to require the jury to find that insured had complied with policy Condition 8(a) (duty to protect). The quintessence of this point is the association’s contention that insured failed to pursue, protect and retrieve the stolen automobile after it was located in Baton Rouge, Louisiana. The same was true of the second and final aspect of association’s Point (2) on appeal — that “all the evidence showed as a matter of law” that insured had not complied with policy Condition 8(a) (duty to protect) — which was ruled adversely to the association. Under the principles there applied to the facts, the insured’s duty to pursue, protect and retrieve the stolen automobile was held to have terminated on September 2, 1974, a date preceding knowledge of its location in Baton Rouge, Louisiana. Consistent with the reasoning and principles engaged and applied in -disposing of the second and final aspect of Point (2), the association’s attempted condemnation of Instruction No. 3 fails.
Point (5) charges that the trial court erred in refusing to give association’s requested Instruction No. D defining “theft or larceny” as used in Instruction No. 3, the insured’s principal verdict directing instruction, because they are technical terms. Two salient matters should initially be mentioned and weighed in connection with Point (5). First, “Coverage G — Theft” under “Part III — Physical Damage” of the policy is east in the following language: “To pay for loss to the owned automobile or to a non-owned automobile caused by theft or larceny”. Although the policy throughout contains numerous definitions of certain terms used therein, none are to be found defining “theft”, “larceny” or “theft or larceny”. Second, Instruction No. D requested by the association purporting to define “theft or larceny” obviously
treated
“larceny” and “theft” as interchangeable terms under the facts disclosed by the record in the instant case in that it gave a single, common definition to the term “theft or larceny”, to wit, “[t]he term ‘theft or larceny’ as used in these instructions means a taking, without the owner’s consent, with the intention on the part of the taker to deprive the ownér of his property permanently”. Although considered in a frame of reference other than jury instructions, it is appropriate to reiterate what was said in
Eiswirth Const. & Equipment Co. v. Glenn Falls Ins. Co.,
Point (6) charges the trial court with error in giving insured’s requested measure of damages instruction, Instruction No. 5, because it deviated from MAI 4.02 (Measure of Damages — Property Only) in that it cast the measure of damages in terms of “actual cash value” rather than in terms of “fair market value”. Under “Part III — Physical Damage” of the policy of insurance in question, which includes “Coverage G — Theft”,it is expressly stated under the heading “Limit of Liability” that “[t]he limit of the company’s liability for loss shall not exceed the
actual cash value
of the property . . ”. (Emphasis added.) It is reasonable to assume that “actual cash value” was substituted in lieu of “fair market value” in Instruction No. 5 in an attempt to conform with the language of the policy. Moreover, the trial court gave Instruction No. 6 requested by the insured which defined the term “actual cash value” as follows: “The term ‘actual cash value’ means the price which the Cadillac automobile would bring when offered for sale by one willing but not obliged to sell it, and is bought by one willing or desirous to purchase it but who is not compelled to do so.” This instruction, modified only by way of inserting “actual cash value” in lieu of “fair market value”, and “Cadillac automobile” in lieu of “property in question”, otherwise faithfully conformed to the first paragraph of
MAI
16.-02
9
in effect at the time this case was tried. MAI 16.02 was revised in 1977 (effective January 1, 1978, a date subsequent to the trial of this case) by substituting the word “phrase” in place of the word “term” in the first sentence, and “Notes on Use” were appended for the first time which provide in part as follows: “When the phrase ‘fair market value’ is used, it must be defined.
In
Myers v. American Indemnity Company,
Point (7) relied on by the association — that Instruction No. 5 (the measure of damages instruction) erroneously permitted the jury to award prejudgment interest from the date of the loss on any amount awarded to insured under the theft coverage of the policy — presents an issue which can be quickly resolved. Insured’s claim under the theft coverage was unliquidated. The latest pronouncement of this subject appears to be
Fohn v. Title Ins. Corp. of St. Louis,
Point (8) seeks to charge the trial court with error for refusing to grant the association’s request to pass and circulate to the jury during the course of the trial association’s Exhibits 9, 10, 11, 12 and 13 and insured’s Exhibit 26, same having been previously identified and admitted into evidence. A definitive judicial statement tangentially touching upon this issue is found in
Freeman v. Kansas City Power & Light Company,
The association stated in the argument portion of its brief that “[t]he error of the court in failing to pass to the jury .
The association’s final point charges that the trial court erred in refusing to admit association’s Exhibit 5 into evidence, same showing B & G Motor Co. of K.C., Inc.’s, predecessors in title re the 1971 Cadillac Coupe DeVille and that a new certificate of title had never been issued in the name of the insured. To put this final point in proper perspective, attention is called to the fact that the association conceded during trial that the insured had an insurable interest in the 1971 Cadillac Coupe DeVille. The tack taken by the association is that the refused exhibit was relevant to the improperly extended issue injected by the association that the insured had a duty to pursue, protect and retrieve the stolen automobile after it was located in Baton Rouge, Louisiana. The record reveals that the only evidence presented to the jury by the insured regarding title to the stolen automobile was the certificate of title issued in the name of B & G Motors of K.C., Inc., and assigned by it to the insured. When these undisputed facts are juxtaposed with this court’s disposition of the final aspect of Point (2) raised by the association, i. e., that the insured’s duty, if any, to pursue, protect and retrieve the stolen automobile terminated on September 2, 1974, it may be said that Exhibit 5 was cumulative at least and irrelevant at best, and its exclusion was not prejudicial.
Having heretofore held that the judgment below erroneously awarded the insured prejudgment interest in the sum and amount of $577.50, and $385.00 as a penalty and $4,000.00 as a reasonable attorney’s fee pursuant to Section 375.420, RSMo 1969, this court, in the waning portion of its opinion, is confronted with the ultimate disposition of this case as the effect of its opinion affirms the judgment below in part and reverses it in part. Pursuant to Rule 84.14, and under the authority of
Caen v. Feld,
Accordingly, the judgment appealed from is affirmed in part and reversed in part and the case is remanded to the trial court with directions to enter a new judgment in favor of the insured and against the association in the corrected sum and amount of $3,850.00 and for costs.
All concur.
Notes
. This “proof of claim” was never offered or introduced into evidence.
. . No evidence was offered elaborating upon the “Louisiana law” which Dealers Wrecker Service purportedly relied upon when it sold the 1971 Cadillac Coupe DeVille.
. The issue of “vexatious refusal to pay” was submitted to the jury per the provisions of Section 375.420, RSMo 1969, rather than under the provisions of said statute as amended in 1975. See Section 375.420, RSMo Supp. 1975. So far as here pertinent the 1975 amendment merely enhanced the penalty for damages and does not change the posture of the issue presented.
. As noted in
Harding v. State Farm Mutual Automobile Ins. Co.,
. This result is consistent with MAI 32.24 adopted and approved by the Supreme Court on May 23, 1977, effective January 1, 1978. Although MAI 32.24 postdated the trial of the instant case it was obviously presaged by Greer
v. Zurich Insurance Company,
“32.24 (1977 New) Affirmative Defense — Insurance Policy Defense.
Your verdict must be for defendant insurance company if you believe:
First, plaintiff (describe violated policy condition, e. g., failed to submit a proof of loss to defendant within the time prescribed by the policy), and
Second, defendant insurance company was thereby prejudiced.
Committee’s Comment (1977 new)
This instruction should not be given unless there is evidence of a material breach of apolicy condition. Greer v. Zurich Insurance Co., 441 S.W.2d 15 (Mo.1969).”
The practical thrust of MAI 32.24 appears to be that non-compliance with a condition precedent contained in a policy of insurance is an affirmative defense and to impress upon an insurer the dual burden of
pleading
and
proving
(1) noncompliance and (2) that it was prejudiced thereby. This seems to be a valid conclusion in light of Rule 55.08 which requires a party pleading to a preceding pleading to affirmatively plead an affirmative defense. As the “Committee’s Comment” makes no reference to
Harding
v.
State Farm Mutual Automobile Ins. Co.,
. Condition 8(b) of the policy issued to the insured in this case, so far as here pertinent, reads as follows: “file with the company, within 91 days after loss, his sworn proof of loss in such form and including such information as the company may reasonably require . . The record is devoid of evidence that the company ever conveyed to the insured any requirement as to the form or content of the proof of loss the association presently claims the insured was remiss in not submitting.
. Although Section 375.420, RSMo 1969, was amended in 1975 (See Section 375.420, RSMo Supp.1975) in certain respects, for instance the amount of recoverable damages was increased, the insured’s verdict directing instruction submitting the issue of “vexatious refusal to pay” accorded damagewise with Section 375.420 as it existed prior to the 1975 amendment.
. The face amount of the company’s policy with respect to “Coverage G — Theft” was $5,000.00.
. “16.02 Definitions — Fair Market Value Defined
The term ‘fair market value’ means the price which the property in question would bring when offered for sale by one willing but not obliged to sell it, and is bought by one willing or desirous to purchase it but who is not compelled to do so.