Opinion
No. 42484.
May 12, 1952. Motion for Rehearing or to Transfer to Court en Banc Denied June 9, 1952.
Franklin E. Reagan, Sievers Reagan, St. Louis, and Oliver Oliver, Cape Girardeau, for appellant.
Frank A. Lowry, James A. Finch and Finch Finch, Cape Girardeau, for respondent.
Christina C. Mercer's "Tot-Teen Shop" on Main Street in Cape Girardeau was insured in the Millers' Mutual Fire Insurance Association in the sum of $24,500. On the 16th day of February 1949 the stock of merchandise was partially destroyed by fire and damaged by smoke and water. After taking Mrs. Mercer's examination under oath the insurance company "under the facts and circumstances of this fire," denied all liability under its policy for the loss and damage. After the company's denial of liability Mrs. Mercer instituted this action on the policy claiming that her loss and damage was $12,254.27. She alleged that the company "vexatiously refused" to pay her loss and therefore asked for ten per cent interest and attorney's fees. The company's defense was that "said fire was wilfully and intentionally set, or caused to be set, by the plaintiff for the purpose of burning said property and collecting the insurance therefor * *." Upon the trial of the cause the jury found all the issues in favor of Mrs. Mercer, and found and assessed her damages at $10,000.
Upon the insurance company's appeal she claims that there was no substantial evidence that she burned or procured the burning of the property and therefore the trial court should have directed a verdict for her upon this issue. The jury, however, has resolved that issue in her favor and it would serve no useful purpose to consider it now. But, with that issue resolved, the only question was the amount of her loss and damage, and the insurance company claims that it was entitled to a directed verdict upon that question and that there was prejudicial error upon the trial of that issue in the admission of evidence, in instructing the jury and in the conduct of the trial court.
In the course of the trial the plaintiff offered and the court received in evidence the proof of loss her lawyer had prepared and submitted to the company. The proof of loss showed an inventory value of $15,022.97 at the time of the fire and a claim of loss or damage of $12,234.27. Exhibit 5, consisting of approximately sixty-five sheets, was a detailed inventory of all the merchandise in the "Tot-Teen Shop" after the fire and exhibits 6 was an inventory of smoke and water damaged goods sold for salvage and these exhibits were received in evidence. The plaintiff also offered in evidence line eight of a copy of her 1948 income tax return which showed an inventory value of $14,421.37. It is claimed that the trial court prejudicially erred in admitting these exhibits in evidence and that, without the proof of loss, there was no evidence or proof of damages and, therefore, the company was entitled to a directed verdict upon that issue.
By way of generalization it may be said that proofs of loss are admissible to show compliance with the provisions of the policy in that respect, but they are not admissible for other purposes; for example, they are not "competent independent evidence" as to the amount of the loss or the value of the property. 46 C.J.S., Insurance, § 1340b, page 493; Tiller v. Farmers' Mutual Fire Ins. Co., 220 Mo.App. 1337, 296 S.W. 464, 466. However, their mere admission in evidence does not necessarily demonstrate such prejudicial error as to demand a new trial. In Metropolitan Ice Cream Co. v. Union Mutual Fire Ins. Co., Mo.App., 210 S.W.2d 700, partially quashed in 358 Mo. 727, 216 S.W.2d 464, the trial court admitted the proofs of loss "for the purpose of showing the amount of the damage but not as to having any bearing on the cause of the damage," thus plainly indicating that they were received and considered for a purpose for which they were inadmissible. Proofs of loss may be admissible, however, in connection with other evidence as to value, or for the purpose of refreshing a witness' memory as to the cost of various items and it then becomes a question of limiting the effect of such evidence either by instructions or objections. Newmark v. Liverpool London Fire Life Ins. Co., 30 Mo. 160; Bowman v. Anderson, 268 Mo. 1, 186 S.W. 1012. If they are received "for all purposes," without restriction and after proper limiting objections their admission may constitute reversible error. Johnstone v. Home Ins. Co. of New York, Mo.App., 34 S.W.2d 1029. Likewise as to exhibits five and six, it is, of course, necessary that inventories be identified and offered and received in evidence for the purposes for which they are admissible and have probative value. If they are improperly employed their admission may constitute prejudicial error. Security Printing Co. v. Connecticut Fire Ins. Co., 209 Mo.App. 422, 449, 240 S.W. 263. For the purposes of this opinion it may be conceded that the inventories were not properly identified, initially, and that item eight of plaintiff's income tax return was inadmissible but their prejudicial effect may not be determined apart from the realities of the entire record and the essential issues involved.
As we have said, the company denied liability for the loss and damage by reason of arson. As to the amount of the loss, the company denied that the reasonable value of the property destroyed or damaged was $12,254.27. Specifically, the company made this plea in its answer: "Defendant states that on March 16, 1949, defendant and plaintiff arrived at an agreement that the actual amount of loss in this case, caused by said fire, was $8,040.96; that said agreement was arrived at solely and only for the purpose of determining the actual amount of said loss and damage, * * *." Mrs. Mercer repudiated it and claimed that she thought she was signing a receipt but the company offered in evidence an "Adjuster's Agreement" A. D. Jones, in which the parties agreed and found the "sound value" of the property to be $16,930.29 and the "loss and damage" to be $8,040.96, as pleaded in the answer. The plaintiff also offered in evidence exhibit seven which was an inventory prepared by the adjuster. It was from this "corrected" inventory, from Mrs. Mercer's bank deposits, from figures obtained from a copy of her income tax return and from personal inspection that the adjusters arrived at their figures. One of the adjusters stated that he had never seen exhibit six which, as we have said, purported to list the property sold for salvage. But he said that exhibit five, the long detailed inventory, was "the inventory presented to me on March 9th." He said that he had been told that Mrs. Little, Mrs. Mercer's clerk, and her brother, Mr. Collier, had actually prepared "the count" in her inventory. It was from this inventory that he prepared his own inventory, exhibit seven. He said that exhibit six contained innumerable errors and he went over the exhibit item by item with Mrs. Mercer and his inventory was in fact merely a corrected tabulation of exhibit six. It was from these tabulations that he arrived at an original corrected inventory value of $14,342.04. It was also upon the basis of these figures that he arrived at and agreed to a "sound value" of $16,930.29 and a "loss and damage" of $8,040.96, while the plaintiff in her proof of loss claimed an inventory value at the time of the fire of $15,022.97 and a loss of $12,234.27. In short, the "sound value" or the tabulations concerning the inventory of the property prior to the fire was shown by evidence other than the proof of loss, the income tax return or the inventories. Union Trust Co. v. Wyatt, Mo.Sup., 58 S.W.2d 708, 713; Baile v. St. Joseph Fire Marine Ins. Co., 73 Mo. 371, 388. In the second place there was a difference between Mrs. Mercer and the company as to the amount of her loss, of $4,213.31; she claimed a loss of $12,254.27 and the company claimed that her loss was $8,040.96. The jury found her loss to be $10,000, which was $1,959.04 more than the company admitted it to be and $2,254.27 less than Mrs. Mercer claimed. In these circumstances it may not be said that the jury was misled by any inadmissible evidence, Gueringer v. Fidelity Deposit Co., Mo. App., 184 S.W. 936, 937, and prejudicial error is not demonstrated as to the evidence complained of. Security Printing Co. v. Connecticut Fire Ins. Co., supra. In addition to the evidence noted, Mrs. Mercer positively testified that her loss and damage was $12,234.27 and, consequently, the court did not err in refusing to direct a verdict for the defendant upon this issue. Avery v. Mechanics' Ins. Co., 222 Mo.App. 467, 280 S.W. 726; Rissler v. American Central Ins. Co., 150 Mo. 366, 51 S.W. 755; Johnstone v. Home Ins. Co. of New York, supra.
In connection with the pleaded issue of vexatious delay the plaintiff offered in evidence exhibit eight which was her lawyer's letter to the company on April 12th, 1949 enclosing the proof of loss. In the letter the lawyer criticized the adjuster's inventory and his loss figure of $8,040.96 and explained how Mrs. Mercer had arrived at her loss figure of $12,234.27. Upon the issue of vexatious delay the lawyer also testified to the services he had performed, including the removal of the cause to the United States District Court, certain matters concerning interrogatories and the filing of a writ of prohibition in this court. In addition the plaintiff was permitted to testify that following the fire the defendant company canceled a fire insurance policy on her household goods, that another insurance company canceled its liability policy and a robbery policy, and that the defendant canceled her landlord's policy on his building. The company urges that the trial court prejudicially erred in admitting all this evidence. Of course, in so far as the letters were mere self-serving declarations they were inadmissible, Smith v. Ohio Millers' Mutual Fire Ins. Co., 320 Mo. 146, 6 S.W.2d 920, and matters arising after the filing of the suit, such as continuances and changes of venue do not show vexatious delay. State ex rel. Gott v. Fidelity Deposit Co., 317 Mo. 1078, 298 S.W. 83, 91. The cancellation of other insurance, particularly liability insurance in another company, may have had no bearing upon the cause, but when these policies were formally offered in evidence the defendant objected to their introduction and the court sustained the defendant's objection to their introduction and the defendant did not request any other or further action by the court. But, as we have said, this evidence was admitted upon the issue of vexatious delay and attorney's fees. And, at the close of the case, the court, by specific instruction, told the jury that "under the law and the evidence there is no basis for the allowance of penalties or attorney fees for vexatious delay, and this issue is withdrawn from your consideration." In these circumstances, in the absence of clear demonstration of prejudicial effect, the court did not prejudicially err in admitting the evidence because the issue upon which it was admitted was specifically withdrawn from the jury's consideration. Orr v. Shell Oil Co., 352 Mo. 288, 177 S.W.2d 608.
Instruction number one, given at the request of the plaintiff, hypothesized for the jury in four separately numbered paragraphs that the parties "by their pleadings herein, have admitted the following facts:" and concluded by advising the jury that upon those admitted facts they should return a verdict for the plaintiff "unless you find and believe from the evidence herein, as defined in Instruction Number 2 that said fire of February 16, 1949 was wilfully and intentionally set or caused to be set by Plaintiff for the purpose of burning said property and collecting the insurance * * *." It is now objected, without the citation of authority, that this instruction was prejudicially erroneous. First it is urged that there was no admission, as stated in the instruction, that "Defendant Insurance Corporation insured Plaintiff's merchandise * * * against damage resulting from fire in the total sum of $24,500.00." The argument is this: In her petition the plaintiff pleaded that on November 29, 1948, in consideration of a premium of $253.39, the defendant issued its policy of fire insurance, number M-7821, by which it insured the plaintiff's property in the sum of $20,000. The petition then pleads, in the same paragraph, that on February 8, 1949 "while such policy of insurance was in force defendant insurer, in consideration of an additional premium payment by plaintiff of $46.81 issued its rider to said policy of insurance by the terms of which said policy was increased in all its provisions to an amount not to exceed the sum of $24,500.00." That was paragraph three of the petition, and the defendant's answer "admits the allegations of Paragraph 3 of plaintiff's petition." Now the company says that the instruction purports to tell the jury that on November 29, 1948 defendant "issued policies" in the amount of $24,500 when such fact was not admitted in the pleadings and conceals from the jury the fact that the insurance was increased $4500 a few days before the fire and erroneously told the jury that the plaintiff had $24,500 insurance on November 29, 1948. The respondent concedes that the instruction was technically incorrect in the respect pointed out. However, neither is the appellant technically correct. There is but one policy of insurance, number M-7821, issued on the 29th day of November 1949 for $20,000. Attached to this policy, effective as of February 2, 1949, is an "Increased Amount Endorsement" by which the total insurance was increased to $24,500. When Mrs. Mercer testified she was examined at length as to how and why the insurance was increased, and the jury thoroughly understood the whole matter. Even technically, as we view it, the instruction was not erroneous in stating as an admitted fact that "Defendant Insurance Corporation insured Plaintiff's merchandise * * in the total sum of $24,500.00," in any event it was not prejudicially misleading.
Two other paragraphs in the instruction stated that the pleadings admitted that the insured merchandise "was destroyed, damaged or lost to Plaintiff as a result of fire," and that the company's agents "inspected, investigated and inventoried said fire and the damage to Plaintiff's merchandise * * *." The defendant now says "There was no admission that defendant inventoried or appraised the fire loss and damage," and "There was no admission in this case by the defendant's pleading that any property was lost to the plaintiff * * *." Again, these objections and complaints are indeed technical. In paragraph four the plaintiff pleaded that said stock of merchandise was "destroyed, damaged and lost to the plaintiff as a result of fire, smoke, water, etc., * * *," that defendant was notified of the fire and loss and its adjusters appeared "inspected, inventoried, appraised and investigated said fire and its resultant loss and damage to plaintiff's property * * *." As to paragraph four the defendant's answer admits that while its policy was in force "the property of plaintiff, located in Mercer's Tot-Teen Shop * * * was destroyed or damaged by fire." As to paragraph five the defendant, in its answer, "admits that it received notice of said loss and damage and that defendant inspected said property and the fire loss and damage." But if these specific pleadings are not sufficient as admissions "that any property was lost to the plaintiff" or that the defendant "inventoried the loss and damage," there was in fact no issue as to either question upon the trial of the case. The defendant's adjusters testified fully and completely as to both of these matters and, as we have previously pointed out, the company's adjuster prepared exhibit seven, his inventory, from exhibit six, an inventory furnished by the plaintiff. Also, while Mrs. Mercer denied it, the company pleaded that the plaintiff and the defendant agreed that the loss and damage was $8,040.96. Time and again the adjuster testified concerning the inventories and the loss and damage and he agreed beyond question that the sound value of the property was $16,930.29. At the close of the case he was recalled as a witness by the defendant and these were the last questions and answers before the defendant closed its case: "Q. After seeing and examining all of this damage, (he had previously said, `I was there to determine value and loss, not to determine liability, that that was the function of the company, and that I was at liberty to fix the value and loss in agreement with her') spending several days in and out of the store, you fix the amount of damage at $8,040.96? A. Yes. Q. And that represents your best estimate of the reasonable value of the damage resulting from that fire? A. The damage, yes, sir." So even if these matters were not technically admitted by the pleadings they were admitted in fact throughout the trial of the case and the instruction was not prejudicially erroneous in stating that those facts were admitted, Morris v. Equitable Assurance Society of United States, 340 Mo. 709, 102 S.W.2d 569, 574; Gosnell v. Camden Fire Ins. Ass'n, Mo.App., 109 S.W.2d 59, and, of course, if the defendant failed in its defense of arson the plaintiff was entitled to a verdict upon the admitted or tacitly conceded facts and the only remaining question would be the amount of the plaintiff's recovery.
In this connection the company contends that instruction three on the measure of damages was prejudicially erroneous. It is urged that the instruction is erroneous in that it does not follow the rule that the measure of damages is the difference in the reasonable value of the property immediately before and the reasonable value of the property immediately after the fire. It is also said that there was no evidence, as to the value of the property immediately before the fire, or after, and therefore the instruction was not supported by evidence, but what we have previously said indicates the unsoundness of this argument. It is not necessary to set forth the instruction and discuss in detail the objections to it. In addition to instruction three, instruction one was also partly concerned with the measure of damages and even though they are not technically accurate they are not so inaccurate as to be misleading or so erroneous as to require the granting of a new trial. Cass v. Pacific Fire Ins. Co., Mo.App., 224 S.W.2d 405. Obviously the instructions did not cause the jury to apply an improper rule in arriving at the amount of the damages. Jarnagin v. Queen Ins. Co. of America, Mo.App., 272 S.W. 1095.
In short, as to all the objections and assignments of error thus far, it is our view upon the whole record, Goffe v. National Surety Co., 321 Mo. 140, 9 S.W.2d 929, that there was no error committed by the trial court against the appellant materially affecting the merits of the action. Section 512.160, subd. 2, RSMo 1949, V.A.M.S. Once the issue of arson was resolved the only question was the amount of the plaintiff's recovery. The company could not possibly claim that there was no loss or damage and its adjusters admitted a loss of $8,040.96 and a sound value immediately preceding the fire of over $16,000. The plaintiff claimed a loss of $12,254.27, and the jury in fixing her loss at $10,000 was obviously not prejudicial, misinformed or misled either by any improperly admitted evidence or by any erroneous instructions.
In conclusion it is urged by reason of the court's misconduct towards counsel that the appellant did not have a fair trial and therefore a new trial should be granted. What we have said heretofore is probably a sufficient answer to the claim of prejudice and an unfair trial. But, while appellant's counsel was examining one of its principal witnesses, an adjuster, the court, without objection by the plaintiff's lawyer, interposed and said, "Now, once more, I am admonishing you not to lead your witness. Ask the witness what he did and when he did it." Counsel suggested that he did not know whether the question was leading and the court said, "The court knows it." Counsel asked permission to make a record out of the jury's hearing and the court granted the permission and said, "All right, if you can say it to the stenographer there, go ahead. I am tired of leading. I have had a lot of experience in this leading business, I don't stand for it." Counsel then made an objection to the court's remarks, or reprimand as counsel call it, emphasized the "tone of the court's voice" indicating anger and asked for a mistrial. Counsel now emphasize the tone of the court's voice, his demeanor, the fact that there had been no objection by opposing counsel and the fact, as counsel state, that plaintiff's counsel asked 141 leading questions for which the court did not voluntarily reprimand plaintiff's counsel, and contends that the entire record demonstrated that the court's conduct deprived the appellant of a fair trial. On two previous occasions, upon objection by plaintiff's counsel, the court had sustained objections to leading questions and admonished counsel to not ask leading questions. In this 250 page record there were thirty-one objections by counsel on both sides, and in these counsel for appellant got about an even break. There were two other instances in which the court voluntarily interposed, once to a witness and once the court admonished plaintiff's counsel to not argue with a witness. Also the court admonished counsel to make their objections to the court and to not "talk across the table." But, after the incident complained of which appears on the 183rd page of the record the court did not again interpose except to warn plaintiff's counsel. Thereafter there was but one objection on either side concerning leading questions and when plaintiff's counsel objected the court overruled the objection and said, "I didn't recognize it as unduly leading." The incident complained of, including the tone of the court's voice and menacing demeanor, may have indicated some petulance or pique but the record does not indicate such belligerence as to demonstrate that the court was not impartial or, in short, that the jury was so influenced by the court's conduct as to deprive the appellant of a fair trial. Cromeenes v. Sovereign Camp of the W. O. W., 205 Mo.App. 419, 224 S.W. 15; McLain v. Atlas Assur. Co., Limited, Mo. App., 67 S.W.2d 849; Bova v. Bova, Mo. App., 135 S.W.2d 384; Banks v. Empire Dist. Electric Co., Mo.App., 4 S.W.2d 875.
As we have said, upon the whole record the appellant has failed to demonstrate prejudicial error and the judgment, therefore, is affirmed.
WESTHUES and BOHLING, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur.