| Mo. Ct. App. | Jun 3, 1913
This is a suit on a policy of insurance against loss or damage to an automobile caused solely by collision with another object. Plaintiff recovered and defendant prosecutes the appeal.
It appears plaintiff’s automobile in charge of a chauffeur slipped or skidded while descending a hill in Forest Park in St. Louis and became unmanageable. The machine was moving at a rapid rate of speed and slipped or skidded so as to thrust the rear wheels across the guttering next adjacent to the roadway and across a grass plat two feet wide between the guttering and the sidewalk, where the rear wheel collided with the granitoid sidewalk. The granitoid sidewalk is about six inches higher than the surface of the earth and it appears the collision of the rear wheel of the automobile with it occasioned the complete reversal of the position of the machine — that is, it headed about, jumped over the sidewalk and overturned backwards, falling across the gutter and upon the roadbed. The evidence tends to prove, and from the finding of the jury it appears, that the collision with the sidewalk operated as the proximate cause 'Of the damage done to the machine. The roadway is constructed through Forest Park at the point in question with granitoid guttering adjacent on either side, but no perpendicular curb, as is usual on the side of a city street, is there maintained. The guttering is shown tb be about twenty inches in width and slopes as a semicircle from, and on a level with, the sides of the roadway to the center of the gutter, whence it raises toward the grass plat and sidewalk. It is said that the center of the gutter is but two or three inches lower than its sides. Immediately outside of the gutter and adjacent thereto is a grass plat two feet in width, and adjacent to this is
The policy sued upon vouchsafes insurance against loss or damage to the automobile including its operating equipment while attached thereto, if such damage is “caused solely by collision with another object (excluding however ... all loss or damage caused by striking any portion of the roadbed ... ” While the evidence is almost conclusive that the proximate cause of the damage was the collision of the rear wheels of the automobile with the sidewalk, there is a strong inference arising therefrom to the effect that the tires might have been dissevered from the wheels through sliding across the granitoid gutter, and because of this it is urged the court erred in instructing the jury that the gutter constituted no part of the roadbed. In the concluding lines of the principal instruction given for plaintiff, the court instructed the jury that the cement or granitoid guttering was not a part of the roadbed of said road within the meaning of the policy read in evidence. It is urged that this instruction inheres with error for the reason the gutter is within and a part of the street or roadway. The proposition is, no doubt, entirely true with respect to the power of a city to construct, improve and maintain streets and is usually so declared. [See Warren v. Henly, 31 Iowa, 31" court="Iowa" date_filed="1870-01-27" href="https://app.midpage.ai/document/warren-v-henly-7094808?utm_source=webapp" opinion_id="7094808">31 Iowa, 31.] But though such be true, it is obvious that the gutter constructed in the street or on the roadway and along the side of the roadbed is not a portion of the roadbed when considered with ref
It is said the automobile was a valuable one, costing $6500 when new, about a year before the injury. The evidence tends to prove that it was damaged from $2500 to $3000 as a result of the collision with the sidewalk. The jury awarded plaintiff $2500. By instruction, the court authorized a recovery for the full amount of the damage inflicted upon the machine. It is insisted this was error for the reason that the policy by its express provisions remits twenty-five dollars of the loss to the insurance company in every instance and casts liability against it only for such damages as accrue over and above twenty-five dollars. The question is to be determined by interpreting the language of the policy in connection with the subject-matter to which it refers and in view of an established rule of law in insurance cases. The provision is as follows:
“Each claim hereunder shall be adjusted separately, and from the amount of each claim when determined the sum of twenty-five dollars ($25) shall be deducted, and the company shall be liable for loss or damage in excess of that amount only.”
Following this are certain provisions with respect to the ascertainment of the amount of a claim for loss, and it is provided the company shall not be responsible beyond the intrinsic value of the property destroyed. Furthermore, the provisión goes to the effect that the parties shall agree on the amount of the loss if possible; if not, then two appraisers may be selected to do so, and if they fail to agree then a third may be selected by them. An arbitration seems to be thus provided for and contemplated. It is urged that the clause above copied is available to defendant by way of reducing its liability to an amount in excess of twenty-five dollars only in case an adjustment is made or the amount determined in accordance with the provisions of the policy relating to an agreement between
The statute (Sec. 7068, R. S. 1909) authorizes a recovery of attorney’s fee on the part of insured if it appear from the evidence that the company has vexatiously refused to pay the loss. The jury awarded plaintiff an attorney’s fee of $500 on account of vexatious delay. It is urged that this amount should be remitted for the reason that there is no evidence in the case tending to prove the delay in payment was vexatious. A practicing attorney testified that $500 was a reasonable charge for services rendered in the cause, and the sufficiency of the evidence with respect to that matter is not challenged. But the argument goes to the effect that there is no evidence tending to prove the delay was vexatious. It is true there is no direct and positive evidence to the effect that the delay in payment was vexatious, but such evidence — that is positive and direct evidence — is not required. The jury are authorized, in cases of this character, to infer and conclude that the delay was vexatious from a survey of all of the facts and circumstances in the case tending to reveal the conduct of the insurance company with respect to the matter. In this connection they may take into consideration the validity of plaintiff’s claim and the fact that it became necessary to institute a suit to collect it. Indeed, the fact, that defendant declined to compensate the loss without litigation is of itself evidence tending to prove the delay thereabout to be vexatious. Such is the established rule of decision. [See Keller v. Home Life Ins. Co., 198 Mo. 440" court="Mo." date_filed="1906-07-03" href="https://app.midpage.ai/document/keller-v-home-life-insurance-8015868?utm_source=webapp" opinion_id="8015868">198 Mo. 440, 460, 461, 95 S.W. 903" court="Mo." date_filed="1906-07-03" href="https://app.midpage.ai/document/keller-v-home-life-insurance-8015868?utm_source=webapp" opinion_id="8015868">95 S. W. 903 ; Cox v. Kansas City Life Ins. Co., 154 Mo. App. 464" court="Mo. Ct. App." date_filed="1911-02-13" href="https://app.midpage.ai/document/cox-v-kansas-city-life-insurance-6627298?utm_source=webapp" opinion_id="6627298">154 Mo. App. 464, 135 S. W. 1013 ; Williams v. St. Louis Life Ins. Co., 189 Mo. 70, 87 S. W. 499.]
For- the error in the instruction authorizing a recovery in full compensation when twenty-five dollars should have been deducted, the judgment must be re
Plaintiff having remitted twenty-five dollars from the amount of the verdict as of its date, the judgment is affirmed for $2475 together with interest thereon at six per cent per annum from the date of its rendition, the appellant to have the costs of appeal paid out and expended. It is so ordered.