Opinion
December 5, 1951.
1. — Insurance. In suit against insurer upon policy covering collision between insured's automobile and railroad engine, question whether automobile was completely worthless after collision was for jury.
2. — Insurance. Malice, manifested by an unlawful act done willfully and purposely to injury of another, even with good motives, is vexatious within meaning of statute authorizing award to insured, in addition to actual loss, for vexatious delay of insurer in payment of loss sustained.
3. — Insurance. In suit against insurer on policy covering collision between insured's automobile and railroad engine, instruction that, if evidence established that insurer vexatiously refused to pay loss sustained by insured, jury, in addition to actual loss, could award insured an additional sum, not to exceed 10 per cent of actual loss, and a reasonable attorney's fee, was proper.
4. — Insurance. Statutory provision authorizing award to insured, in addition to actual loss, for vexatious delay on part of insurer, does not provide for damages for vexatious delay on any item except insured's actual loss.
5. — Appeal and Error — Insurance. In action against insurer upon policy covering collision between insured's automobile and railroad engine, award of 10 per cent damages for vexatious delay on interest allowed on insured's actual loss was improper, but error could be cured by remittitur.
6. — Insurance. In suit against insurer to recover upon policy covering collision between insured's automobile and railroad engine, evidence sustained award of additional amount on proven damages to automobile, for vexatious delay, and for attorneys' fees.
Appeal from Circuit Court of Laclede County. — Hon. Claude E. Curtis, Judge.
AFFIRMED AFTER REMITTITUR.
Orville C. Winchell for Appellant.
The defendant's motion for a new trial having been overruled, this appeal is properly brought from the final, entered judgment. Weller v. Hayes Truck Line, St. L.A., 192 S.W.2d 667, 679 (4), Appeal Transferred, Banc, 355 Mo. 695, 197 S.W.2d 657, 659-660 (3-7); Woods v. Cantrell, Div. 1, 356 Mo. 194, 201 S.W.2d 311, 314-315 (2-3); Mo. R.S.A., Sec. 847.126. The issues here presented, wherein the giving of a certain instruction is charged to be error, are properly before this Court, since defendant objected to the giving of such instruction before it was read, and although specific reasons for the objections were not stated. Bowers v. Etherton, Div. 2, 358 Mo. Sup., 216 S.W.2d 83, 86 (5); Holdman v. Thompson, Div. 2, 358 Mo. 577, 216 S.W.2d 72, 74-75 (3-4); Lindsey v. Rogers, St. L.A., 220 S.W.2d 937, 941 (9); Mo. R.S.A., Sec. 847.122; Rules of the Supreme Court, Rule 3.21. Whether error was committed in giving of the instruction, to which defendant objected, is a question of law, and the resulting issues on appeal are fully reviewable before this Court. City of Kennett v. Katz Construction Co., Div. 2, 273 Mo. 279, 202 S.W. 558, 561 (5); Shipper v. Brashear Truck Co., Div. 1, Mo. Sup., 132 S.W.2d 993, 995 (2); Yuronis v. Wells, Div. 1, 322 Mo. 1039, 17 S.W.2d 518, 522-523 (4). I. The trial court erred in giving Respondent's (T. 182) Instruction No. 2 because: A. Said instruction directs the jury to find a penalty, not exceeding ten per cent (10%), and further directs the jury to allow a penalty on the interest in addition to what they found as the amount due under the policy. R.S. Mo. 1939, Sec. 6040; Gosnell v. Camden Fire Insurance Association of Camden, New Jersey, Mo. App., 109 S.W.2d 59 (72). B. Said instruction is broader than the pleadings and the evidence because the insurance company did not agree to pay plaintiff for any damage to his automobile in excess of Fifty Dollars ($50.00) resulting from a collision or upset; that the language used is conflicting and confusing in defining what the jury could find and the law applicable thereto. "The court instructs the jury that if you find for the plaintiff on the policy, and if you further find that the defendant insurance company agreed to pay plaintiff for any damage to his automobile in excess of Fifty Dollars ($50.00) resulting from collision or upset, and if you further find that defendant insurance company has refused to pay plaintiff's loss, if any; and if you find that such refusal was willful and without reasonable cause, as the facts appear to a reasonable and prudent man before the filing of this suit, then you may, in addition to the amount due on the policy and interest, allow the plaintiff damages not exceeding ten per cent (10%) on the amount of the loss and a reasonable attorney's fee." State ex rel. Grisham et al. v. Allen, 124 S.W.2d 1080; Mott et al., v. Chicago, R.I. P. Ry. Co., 79 S.W.2d 1057 (1062); Crone v. United Rys. Co. of St. Louis, 236 S.W. 654. C. The trial court erred in giving respondent's instruction because it is a mere abstract statement of law and could only confuse the jury as to permissible defenses of appellant to determine extent of damages after offer to settle, and also, the submission of attorney's fees, interest and penalty were not supported by evidence. Cass v. Pacific Fire Ins. Co., 224 S.W.2d 405; Rozell v. N. British Mercantile Ins. Co., 257 S.W. 520; Aufrichtig v. Columbian National Life, 249 S.W. 912; Non Royalty Shoe Co. v. Phoenix Assurance Co., 210 S.W. 37, 277 Mo. 399. II. The verdict and judgment (T.192,194) for damages, $600.00, attorney's fees, $300.00; interest $15.00; and vexatious delay $61.50, subject to $40.00 remittitur, are erroneous and excessive. Barton v. Farmers Insurance Exchg., 229 S.W.2d 683; General Exchange Ins. Corp. v. Young 206 S.W.2d 683; Weisman v. Arrow Trucking Co., 176 S.W.2d 37; Glader v. City of Richmond Heights, 121 S.W.2d 254; Wheeler v. Breeding, 109 S.W.2d 1237; Reavis v. Gordon, 45 S.W.2d 99. III. The trial court erred in overruling defendant's motion for directed verdict (T.109) because the evidence of plaintiff did not sustain a compliance with the policy conditions. The burden of proof was on the plaintiff to show a compliance as a condition precedent to recovery. Mercantile-Commerce Bank Trust Co., v. Equitable Life Assurance Soc. of U.S., 59 F. Supp. 787, affirmed 155 F. (2) 776, certiorari denied, 67 S.Ct. 114, 329 U.S. 760; Hughes v. Patriotic Insurance Company of America, 193 S.W.2d 958; Burnham v. Royal Insurance Company 75 Mo. App. 394; Reid, Murdock Co. v. Mercurio, 91 Mo. App. 673; Clanton v. Traveler's Protective Ass'n, 74 S.W. 510, 101 Mo. App. 312.
Fields Low and Jean Paul Bradshaw for Respondent.
I. There is no error in instruction No. 2. A. Since appellant failed to make a timely objection to the giving of the instruction, it cannot object to it now. Section 510.210 R.S. Mo. 1949; Section 510.300 R.S. Mo. 1949; Sollenberger v. Kansas City Public Service Co. (Mo. Sup.) 202 S.W.2d 25, 30; Coogan v. Nighthawk Freight Service, Inc. (Mo. App.) 193 S.W.2d 388, 390; Holdman v. Thompson (Mo. Sup.) 216 S.W.2d 72, 75; Morrison et al. v. Terry (Mo. App.) 205 S.W.2d 902, 904; White v. Metropolitan Life Ins. Co. (Mo. App.) 218 S.W.2d 795, 798; Union Electric Co. v. Morris (Mo. Sup.) 222 S.W.2d 767, 770; Hoover v. Abell (Mo. App.) 231 S.W.2d 217, 221. B. Instruction No. 2 followed the wording of the statute, and no proper objection was saved. Section 510.210 R.S. Mo. 1949; Section 510.300 R.S. Mo. 1949; Noble v. Missouri Insurance Co. (Mo. App.) 204 S.W.2d 446, 450; Holdman v. Thompson (Mo. Sup.) 216 S.W.2d 72, 75; Bullock v. Aetna Life Ins. Co. (Mo. App.) 76 S.W.2d 726, 730; Fox v. Missouri Pac. R. Co. (Mo. Sup.) 74 S.W.2d 608, 611-612; Millaway v. Brown (Mo. App.) 197 S.W.2d 987, 989; Section 375.420 R.S. Mo. 1949; Talbert v. General Exchange Insurance Corporation (Mo. App.) 75 S.W.2d 424, 429, 430; Gosnell v. Camden Fire Ins. Ass'n. (Mo. App.) 109 S.W.2d 59, 72. C. Instruction No. 2 is based upon the pleadings and testimony, and there is no contradictory direction to the jury. Piehler v. Kansas City Public Service Co. (Mo. Sup.) 226 S.W.2d 681, 684; Norvell v. Schupbach (Mo. App.) 185 S.W.2d 323, 326; Corder et al. v. Morgan Roofing Co. (Mo. Sup.) 195 S.W.2d 441, 448; Section 375.420 R.S. Mo. 1949. D. Since it appeared from the evidence that the appellant vexatiously refused to pay the loss, the trial court properly exercised its discretion in giving Instruction No. 2. Albert v. Met. Life Ins. Co. (Mo. App.) 95 SW (2) 343, 345; Evans v. Great Northern Life Ins. Co. (Mo. App.) 167 S.W.2d 118, 125; Frangos v. Hartford Accident etc. Co. (Mo. App.) 203 S.W.2d 894, 898; Columbian Nat. Life Ins. Co. v. Keyes (8 C.C.A.) 138 F. (2) 382, 384; Howard v. Aetna Life Ins. Co. (Mo. Sup.) 164 S.W.2d 360, 366; Cova v. Bankers Shippers Ins. Co. (Mo. App.) 100 S.W.2d 23, 28. II. The judgment after remittitur is correct. Dodd v. M-K-T R. Co. (Mo. Sup.) 193 S.W.2d 905, 907; Kasperski v. Rainey (Mo. App.) 135 S.W.2d 11, 16. III. Appellant waived refusal of court to give directed verdict. Doran v. Kansas City (Mo. App.) 237 S.W.2d 907, 909.
This is a suit for damages upon a policy of insurance, with $50.00 deductible, issued by appellant to respondent, covering a collision between respondent's automobile and a railroad engine on or about October 23, 1949, at Lebanon, Missouri. Respondent was plaintiff in that suit, and appellant was defendant.
The jury awarded plaintiff $600.00 damages to the automobile, with $15.00 interest on that amount, from the time the suit was filed until tried, with a further sum of $300 as attorney's fees, and damages in the amount of $61.50, both of the latter two being for alleged vexatious delay, or a total sum of $976.50.
The trial court overruled appellant's motion for a new trial, upon condition that respondent remit the sum of $40.00 from such judgment, which respondent remitted, making a final judgment of $936.50. It is from such judgment, and after such remittitur, that defendant has appealed.
The appeal was argued in this Court on October 1, 1951. Both appellant and respondent have filed briefs herein. An examination of appellant's brief shows that it alleged only three errors.
Appellant first attacks instruction 2 to the jury in three ways. It first complains of such instruction because it authorized the jury to render verdict against appellant for a penalty; secondly, because such instruction was alleged to be broader than the pleadings and the evidence, and thirdly, because such instruction was a "mere abstract statement of the law" and confusing to the jury.
In addition to its complaint of instruction 2, appellant contends that the verdict returned by the jury, even after such remittitur, is "erroneous and excessive."
Appellant also contends that the trial court committed error in overruling defendant's motion for a directed verdict, at the close of all the testimony and at the close of defendant's testimony, for several reasons.
It was conceded that appellant issued to respondent its policy of insurance, less $50.00 deductible, protecting respondent against damage to his automobile. It was also conceded that such automobile was damaged to some extent, within the period covered by such policy of insurance, while being driven by the son of respondent, by collision with a locomotive in Lebanon, Missouri, on or about October 23, 1949.
Respondent claimed that the automobile was valueless, after such collision, and appellant contended that, while such automobile was damaged to some extent by such collision, it had some value and plaintiff's loss was not as great as was contended by him. There was substantial evidence both ways and the verdict, if the jury was properly instructed, settled the question of the extent of such damage. (Ford v. Louisville Nashville R. Co. 196 S.W.2d 163, l.c. 167; Rockenstein v. Rogers, 31 S.W.2d 92, l.c. 798; Johnson v. Thompson, 236 S.W.2d 1, l.c. 7; Bray v. St. Louis-San Francisco Ry. Co. 236 S.W.2d 758, l.c. 761.
As appellant now contends that the jury was improperly instructed in instruction 2, it becomes necessary for us to set out such instruction in full. It is as follows:
"The Court instructs the jury that if you find for the plaintiff on the policy, and if you further find that the defendant Insurance Company agreed to pay plaintiff for any damage to his automobile in excess of Fifty Dollars ($50.00) resulting from a collision or upset, and if you further find that the defendant insurance company has refused to pay plaintiff's loss, if any; and if you find that such refusal was willful and without reasonable cause, as the facts appeared to a reasonable and prudent man before the filing of this suit, then you may, in addition to the amount due on the policy and interest, allow the plaintiff damages not exceeding ten per cent (10%) on the amount of the loss and a reasonable attorney's fee."
The giving of such instruction at once raises the question of whether or not there was substantial evidence in the record that justified the jury in awarding respondent an additional amount on the proven damages to such car, for vexatious delay, and also attorney's fees for the necessity of filing and prosecuting the suit to a conclusion.
In 38 C.J., pages 253 and 354, it is said:
"In a legal sense, any unlawful act done willfully and purposely to the injury of another is, as against that person, malicious. In this latter sense, an act may be malicious even if it springs from good motives and is without express malice:"
Malice in that sense is vexatious. 67 C.J. 241.
In National Battery Co. v. Standard Accident Insurance Co. 41 S.W.2d 599, 605, 226 Mo. App. 351, the Kansas City Court of Appeals said:
"The insurer may not willfully obstruct the rights of the insured, fret and harass him without a rational cause and escape the penalty the statute provides for so doing."
In this case there was no question about the policy being in force or that the accident to the automobile occurred within the period of time which was covered by such policy. The only question was the amount of damages the holder of such policy suffered. There was no proof that respondent had suffered no loss whatever. He did claim greater loss than appellant conceded. There was no evidence, however, that such automobile could have been brought back after repairs in as good condition as it was in at the time of such collision. The evidence tended to show only a junk value of $40.00 of the automobile, after such collision. It was after suit was filed that appellant pleaded that respondent would not accept any of the amounts previously offered by appellant.
The Kansas City Court of Appeals followed the National Battery case in the case of Chernus v. Kennedy-Coats Const. Co., et al., 55 S.W.2d 744, particularly in local citation, page 752, and cases there cited.
See also Block v. United States Fidelity Guaranty Co. of Baltimore, Md., 290 S.W. 429, 441, 316 Mo. 278.
There certainly was vexatious failure and refusal on the part of appellant, before suit was filed, to pay respondent the loss properly claimed by him, as shown by the evidence.
On its claim that respondent was not entitled to recover punitive damages, appellant cites Revised Statutes of Missouri 1939, Sec. 6040, (now Sec. 375.420, R.S. Mo. 1949). The statute provides that, in any action against an insurance company to recover the amount of any loss under such policy, if it appears from the evidence that such insurance company has vexatiously refused to pay the loss sustained by insured, the jury, in addition to the actual amount of such loss, may award the insured a further sum, not to exceed 10% of such actual loss, and a reasonable attorney's fee. Instruction 2 followed that statute in all respects.
Appellant also cites Connell v. Camden Fire Insurance Ass'n of Camden, N.J., 109 S.W.2d 59. It appeared that the verdict returned by the jury in that case was not in the exact form required by the statute quoted. As we understand the local citation in that case at page 72 thereof, the finding of the jury of interest on the amount of the actual loss suffered by the holder of the insurance policy, for vexatious delay in payment thereof, was improperly allowed by the jury.
Section 6040, R.S. No. 1939, does not provide for damages for vexatious delay on any item, except the actual loss sustained. The jury in this case seems to have been too liberal in awarding plaintiff 10% damages for vexatious delay, on the interest allowed by the jury on plaintiff's alleged loss. As was done in the case cited, such error does not necessarily result in reversal of the judgment. That over-allowance may be cured by a remittitur of $1.50, which remittitur respondent should be required to make, if the verdict be otherwise held to have been properly rendered.
That brings us to the question of whether or not, before suit was filed, appellant had vexatiously refused to pay the actual loss sustained by respondent. Appellant contended that the automobile was of some value, even after collision. While respondent and his witnesses contended that the automobile was valueless, after such collision, there was substantial evidence pro and con on that question, and the jury found the fact to be that the automobile then had no value and that respondent had sustained, as a loss, the entire value of such automobile, and we are not to construe such evidence otherwise than as did the jury, which saw and heard all of the witnesses, who testified on such issue. (See cases above cited on the conclusiveness of the verdict of a jury, when based on substantial evidence.)
This was true even in spite of appellant's evidence tending to prove that such automobile was of some actual value, (more than mere junk value) after such collision. Admittedly, there was quite a bit of delay in settling respondent's loss. The accident occurred on or about October 23, 1949, and the answer before us was filed December 23, 1949, or two months after the collision. There is no question, but that appellant knew fully about the collision the very next day after it happened.
One Snyder, a dealer in old and new automobiles, not only testified to the value of the automobile, before the collision, but testified that, after the collision, such automobile had no marketable value whatever, and then had only junk value; that only automobile dealers, and not the general public, had any interest in such junk value, which could not exceed $40.00, even to a junk dealer. (This may have been the basis for the remittitur required by the trial court later discussed.)
There was, therefore, substantial evidence that, after the collision, the automobile of respondent had only junk value to a dealer in old automobiles and had no actual market value to the general buying public, and, with such knowledge, appellant failed for two months to adjust the loss based, even on its contention that the automobile had some actual value after the collision.
The jury had substantial evidence that such delay was unnecessary and that appellant had vexatiously failed and refused to make the necessary adjustment promptly. We hold that appellant's contention that the jury had no right, under the evidence, to award respondent damages for vexatious delay, must be overruled.
Appellant made objection to instruction 2 alleging that it is broader than the pleadings and the evidence. The petition alleged, and the evidence of respondent tended to show, that appellant agreed to pay respondent the actual amount of any loss sustained, with a deduction of $50.00 from such loss, for a period concededly covering the time of the collision. The petition alleged that such cash value was $650.00, less the $50.00 deduction. The verdict of the jury is supported by the testimony of respondent's witnesses, as we have held above. Its verdict was in the sum of $600.00 actual damages, without specific mention of any imposition of a penalty on interest on such actual damages, or the deductible amount. So far as a penalty on such interest is concerned, such an allowance was improper, and a remittitur therefor is justified.
A remittitur of $40.00 has already been required by the trial court. The propriety of such remittitur is not before us.
The verdict finding that respondent's actual loss was in view of the trial court's instructions, convinces us that has already taken into account the deductible sum of $50.00, in fixing respondent's actual loss. No further remittitur was required by the trial court, and, in the light of the trial court's instructions, we will require no further remittitur here.
But it is our holding that respondent should make a further remittitur of $1.50, in addition to the remittitur required by the trial court, to cover the penalty on the interest improperly allowed by the jury, as heretofore discussed.
Upon such further remittitur of $1.50 being made by respondent, the judgment should be affirmed. Should respondent refuse to make such further remittitur, the judgment should be reversed and the case returned to the circuit court for retrial. It is so ordered. Vandeventer, P.J., and McDowell, J., concur.