Utz v. Orient Insurance

BROAD DUS, J.- — This is a suit on a policy of insurance for a loss occasioned by a fire. The policy covered insurance on a house for $800, and on furniture for $200. At the time the policy was issued the house was further insured in the sum of $700, in the Insurance Company of North America, also the further sum of $500, on the household goods including musical instruments in the Teutonia Insurance Company, and also the further sum of $300, on a piano alone in the Insurance Company of North America, The policy in suit provides that the same shall be void if the assured has or procures other insurance on the property described without the written consent of the insurer shall have first been obtained. The defend [555] ant interposed this provision as a defense against plaintiff’s right to recover. Plaintiff by his reply among other things alleges that at the time of the issuance of said policy in suit defendant was informed that there was other insurance. Plaintiff claimed the statutory penalty for vexatious delay in avoiding payment of the loss. The judgment was for plaintiff for his loss, and the penalty added. At the instance of the court the plaintiff entered a remittitur for the latter. An issue was raised on the question whether defendant ivas informed, at the time the policy in suit Avas issued, of the other insurance then in existence. The plaintiff testified that he informed defendant’s agent at the time of the fact, which the agent denied. The jury found in favor of plaintiff on that issue which of course had the effect of legalizing the policy notwithstanding the recitations therein, that it should be void unless the written consent of the company should first be had. Several errors of the court are assigned for a reversal of the judgment. The court permitted witness it is claimed to testify to the cost price of the musical instruments, in the absence of any showing as to the condition at the time of the fire. “In the absence of proof of market value the cost of non-marketable property may be shown if the price was paid bona fide, in the ordinary course of business and the absence of unusual circumstances, such testimony being connected by full proof of its present condition, or its condition at the time it was sold.” [13 Ency. of Evid., 534.] It is however held by the appellate courts of this State that it is legitimate for the purpose of showing the value of property destroyed to show its original cost. [Matthews v. Railroad, 192 Mo. 1. c. 666; Conner v. Railroad, 181 Mo. 1. c. 419; Stevens v. Springer, 23 Mo. App. 1. c. 385.] In such instances: “Defendant had the right to show the difference in the [556] cost and the depreciation in value by úse and natural causes.” [Matthews v. Railroad, supra.] Here, however, plaintiff was asked also and testified as to the value) of the goods at the time of the fire, but not as to the marketable value. But this evidence was admitted without objection. It is too late to make such objections after trial and judgment. Plaintiff asked witness .the following question: “Did Mr. Welch or Mr. Andrews or any one else for the company ever return or offer to return any part of the $8 (the premium) to you.” Answer: “No, sir.” Defendant said: “We object to that; it is immaterial.” The court overruled the objection. Defendant’s counsel remained silent until after the question was answered before he made the objection. If the question was improper, objection should have been made before answer. [Waddell v. Railroad, 113 Mo. App. 1. c. 686; Foster v. Railroad, 115 Mo. 165; Maxwell v. Railroad, 85 Mo. 1 c. 106.] But the question was proper. [Trust Co. v. Insurance Co., 79 Mo. App. 362.] Objection is made that there was no specific proof of the value of the piano. Witness was asked what was its value. He answered that he paid $250 for it. He was then asked if that was its value. His answer was: “Yes, sir.” No objection was made to this evidence and it seems that it was satisfactory to defendant as it did not offer any evidence on its part as to such value. Finding no substantial error in the trial the cause, is affirmed. All concur.