193 Mo. App. 687 | Mo. Ct. App. | 1916
Plaintiff sued upon an insurance policy covering an automobile. The policy insured plaintiff against direct loss or damage by fire to an amount not exceeding $1500 upon one Auburn automobile, factory number 1428, gasoline, four cylinder touring car, model 1910. There was a provision in the policy that:
“This company shall not be liable beyond the actual cash value of the property at the time any loss*689 or damage occurs, and the loss or damage shall he ascertained or estimated according to such actual cash value, with proper reduction for depreciation, however, caused.”
The policy was for one year from July 24, 1912. Shortly after midnight on July 10, 1918, lacking a few days of being a year after the policy was written, the machine burned while in use on the road in Dallas county. The petition alleged that the car was burned and destroyed by fire and was wholly lost to the plaintiff, save that the wreckage left from said fire was thereafter sold by plaintiff for the sum of fifty dollars, which was the reasonable value thereof.”
The suit was for $1450 (being the full amount of the policy less the $50 received for the wreckage), with interest at sis per cent from September 15, 1913, for an attorney’s fee of $200 and for ten per cent of the loss as a penalty for vexatious refusal to pay. The jury returned a verdict for $1551.50 for the loss and assessed an attorney’s fee at $150 but made no allowance for, and said nothing about, a penalty.. The defendant has appealed claiming that the court erred in matters respecting the determination of the question of the amount of plaintiff’s loss, and also the allowance of the attorney’s fee. "With reference to the question of plaintiff’s loss, it is claimed by defendant that plaintiff offered no evidence whatever upon the value of the automobile at the time of the fire, and that the court erroneously excluded defendant’s evidence offered to show the depreciation in value of the automobile at the date of its destruction.
Section 7030, Revised Statutes 1909, provides that:
“No company shall take a risk or any property in this State at a ratio greater than three-fourths of the value of the property insured, and when taken, its value shall not be questioned in any proceedings.”
But in this case, we think the plaintiff did furnish ■evidentiary facts from which the jury could find that the machine was worth at least all that the plaintiff was demanding. It is true plaintiff offered no evidence expressly stating, in dollars and cents, the value of the automobile at the date of the fire.' He did say, however, that “the machine was in fine condition so far as I know at the time of the fire, the only repairs ever made on the machine was to tighten up the engine, which I did myself, and tires.” Now, by virtue of the statute, section 7030 aforesaid, the value of the automobile, on July 24, 1912, the date of the policy, was fixed, not at $1500 the amount of the policy, but at $2000, since, under the statute, the $1500 was only three-fourths of the machine’s-value. With the value
As to the evidence which defendant claims was erroneously excluded, the record shows that plaintiff’s counsel expressly stated that he had no objection to the defendant showing the depreciation, if any, on the insured machine from the date of the policy up to the time of the fire. And the court permitted defendant to show what was the depreciation subsequent to the issuance of the policy. Many of the questions asked by defendant, which the court excluded, were questions which, in reality, attacked the value of the car at the date of the policy. To have allowed them to be answered would have violated section 7030' which says the value at that date shall not be questioned. The other questions excluded did not attempt to show the actual depreciation in the machine itself from inherent deterioration through lapse of time, use, injury, or damage thereto, but were based upon the theory of depreciation merely because it was at the time of the fire, a used car. Of course, at the time of the fire, the automobile could not have been sold for as much on the market as a new car of the same make and model, for, compared with the.latter, the automobile in question would then be what is commonly called a “secondhand” car. But, a! between parties hereto, the value of the car, in respect of insurance, means its actual value as an instrumentality for continued use. If, through no depreciation inherent in the car itself by reason of the lapse of time, use, injury or damage, the car, as an instrumentality for continued use by the plaintiff, is worth as much or more than the amount claimed, the defendant cannot complain. He cannot add to that actual inherent depreciation the decrease in the price it would bring simply because it is not a new, but is now a used or second-hand car. One might buy a set of furniture, and, after using it in the house
We come now to the question of the allowance of an attorney’s fee. Section 7068 Revised Statutes 1909, provides that “if it shall appear from the evidence that the company has vexatiously refused to pay, the jury may allow a penalty not exceeding ten per cent of the loss cmd a reasonable attorney’s fee.” The jury did not allow the penalty, but did allow $150 for attorney’s fee. The statute seems to join the two, penalty and fee, and appears to make the fee subsequent to, if not dependent upon, the allowance of the penalty. We do not hold that if the jury finds there has been a vexatious refusal to pay, it cannot award the fee where it has withheld the penalty, though it does seem that if the jury thought there was a vexatious refusal they would have allowed all that the statute authorized them to give. The verdict says nothing about whether the jury found a vexatious refusal or.not. It merely assesses the damages on account of the loss and further assessed “the plaintiff’s damages as and for a reasonable attorney’ fee in this suit in the sum of $150.” There is room for the suspicion that the jury did not think there had been vexatious refusal, but concluded that plaintiff notwithstanding that fact, was entitled as additional damages, to an attorney fee because he had incurred that expense in bringing the suit. However, we need not decide the point here discussed, since as we view the record, the objection to the allowance of an attorney’s fee can be placed upon another ground.
“I made ont a proof of loss, which was furnished to the company. -Afterwards Mr. Keller, an adjuster, and I think on the 10th or the 11th came to my office, commenced to figure with me about the depreciation and I said, ‘Well Mr. Keller I have a policy which calls for $1500 insurance and I paid the premium for that amount of insurance and your company issued the policy and you can’t talk depreciation to me.’ ”
On cross-examination he said:
“In the conversation with Mr. Keller I stated I would not take into consideration any depreciation on account of wear and tear on the car, and insisted upon the payment of the full amount of the policy, and I have been insisting upon that all the time.
' “Q. You insisted upon the payment of the full amount of the policy, didn’t you? A. Yes, sir.
“Q. And you absolutely refused to talk about a settlement upon any other basis? A. No, sir.
“ Q. You mean that you would not consider terms of settlement upon any other basis, but you insisted upon the payment of the full amount. A. I did.”
It thus appears that no opportunity was given the company to adjust the question of even the depreciation of the car that could properly be considered, nor does it appear that the depreciation then sought to be adjusted before suit was brought was anything other