action on the policy, since insured was no longer concluded by his estimate therein. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1697, 1698, 1700-1706; Dec. Dig. § 662.*] 7. EVIDENCE (§ 155*) - REBUTTAL - SIMILAR EVIDENCE OF ADVERSE PARTY. Where the insurer had examined its adjuster as to a fire warden's condemnation of the standing walls of a building after a fire and his refusal of a permit to reconstruct to those walls, the insurer could not object to rebuttal evidence as to such matters. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 445-458; Dec. Dig. § 155.*] 8. INSURANCE (§ 670*)-ACTION ON POLICYWAIVER-ALLOWANCE OF ATTORNEY'S FEE. Under Rev. St. 1909, § 7068, providing that if, in any action against an insurer to recover a loss, it appears that the insurer vexatiously refused to pay such loss, the court or jury may allow additional damages, not exceeding 10 per cent. on the loss, and a reasonable attorney's fee, it is not necessary that both the penalty and the attorney's fee be inflicted; and where the insurer's vexatious delay was an issue a finding for an attorney's fee, without expressly finding vexatious delay, was a finding of vexatious delay. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1785-1787; Dec. Dig. § 670.*] Appeal from Circuit Court, Pettis County; H. B. Shain, Judge. Action by Grace Harmon against the Stuyvesant Insurance Company of New York. Judgment for plaintiff, and defendant appeals. Affirmed. Sebree, Conrad & Wendorff, of Kansas City, for appellant. G. W. Barnett, of Sedalia, and Bruce Barnett, of Kansas City, for respondent. ELLISON, P. J. Plaintiff was the owner of a two-story brick building in Wichita, Kan., and on the 22d of August, 1911, she obtained from defendant a policy of fire insurance insuring the property in the sum of $6,000 for a period of five years. The building burned on the 28th of October, 1911. On defendant's refusal to pay the loss, she brought this action for the face of the policy, together with the statutory 10 per cent. penalty and attorney's fees. She recovered judgment for the full amount and interest, together with an attorney's fee. The policy provided that if, in case of fire, the parties could not agree on the amount of the loss an appraisal should be had by each party appointing an appraiser and they selecting a third as an umpire, and that "the award in writing of any two shall determine the amount of such loss." This part of the policy was brought into operation by the failure of the plaintiff and defendant to agree, and defendant, through its adjuster, making a demand for an appraisal. This demand was made in writing on the 2d of November, 1911, wherein was also named one W. C. Martinson as its appraiser. It seems that plaintiff not then having counsel, and not realizing the necessity for giving at tention to defendant's request, did not an- [1] Defendant attacks the binding force of the award for certain irregularities. It insists the appointment of appraisers was not proper. It appears that after the adjuster named Martinson in his letter of November 2d, he afterwards appointed another man. But he did not notify plaintiff of the change, and in his second letter of January 15th gave no intimation of it. Plaintiff therefore quite naturally supposed the original appointment stood, especially in view of the fact that when she notified him of the appointment of her appraiser he said nothing of a change in his. In these circumstances Martinson remained an appraiser duly qualified to enter upon an appraisement in the manner directed by the policy. Defendant also objects to plaintiff's selection of Alexander as her appraiser. But no suggestion made in that respect of his friendship for plaintiff in the least disqualified him. Indeed, the evidence in plaintiff's behalf (which we must accept as true) shows that defendant's adjuster stated he had no objection to him. [2] Defendant complains that it was not notified of a time and place of appraisal. No notice was required by the policy. Each appraiser knew the time and place, and at For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes [4] It is suggested that as the loss was total there was no ground, in view of our valued policy statute, upon which to base an appraisal, and it was therefore void. But defendant fails to consider its own position in regard to this point. It repeatedly demanded the appraisal and (accepting evidence in plaintiff's behalf as true) went through with it to the end. It certainly cannot now, after plaintiff's compliance with its demand and trouble and expense in the matter, be allowed to overturn its own work. tended. The property was not in such con- | this objection. We think it properly ascerdition as to require the presence of the par- tained, and find that defendant had that ties, and unless the appraisers found need question submitted to the jury in its instrucof them there was no necessity for giving tion No. 4. them notice. Paint Co. v. Insurance Company, 165 Mo. App. 30, 49, 146 S. W. 78; Norton v. Gale, 95 Ill. 533, 35 Am. Rep. 173; Vincent v. Insurance Co., 120 Iowa, 272, 278, 94 N. W. 458; Townsend v. Greenwich Ins. Co., 86 App. Div. 323, 83 N. Y. Supp. 909, 911; Am. Steel Co. v. Insurance Co., 187 Fed. 730, 109 C. C. A. 478. While the courts speak of these proceedings as an arbitration and award, there is an essential difference between an arbitration proper, consisting of the hearing of a case between contesting parties, involving the hearing of testimony and an award thereon, and a mere appraisal of the value of what is lost by one for which the other is to pay. In the former the contesting parties should have notice of the time and place of trial (Tiffany v. Coffey, 142 Mo. App. 210, 125 S. W. 1178); in the latter it is not expected or required. Running through defendant's argument there is a suggestion of fraud or unfairness in the selection of plaintiff's appraiser and the umpire, but nothing substantial is shown. So the same remark may be made as to the appraisal itself and the qualifications of the appraisers. In this connection it is proper to remark that in all of defendant's suggestions as to the value of the property and the alleged improper bias of the majority of the appraisers it has closed its eyes to the fact that it put an insurable value of $6,000, the amount of the appraisal, and fixed its premium on that basis. The real trouble between the parties is in the amount of the appraisal; and the difference in that respect has arisen over the condition of the building, or what remained of it, after the fire. Allowing that the standing walls were sound and secure, the estimate insisted upon by defendant of $2,500 for reinstatement of the building to its former condition would probably be just. But the majority of the appraisers found the walls to be bulged and cracked, so that they considered them unsafe, and the building inspector of the city of Wichita thought they should be condemned. We think the effort to show this condition to be unfounded, and consequently to show the appraisers were biased and unfair, has failed. [3] There are a number of specific objections made to the rulings of the court at the trial. One is that on the question of fraud in the appraisal defendant's offer to show what plaintiff paid for the house was refused. A single sale of property is not a good criterion of its value. Another is that the policy required the "sound value" of the property to be found by the appraisers and that they, notwithstanding they certified that they had found it, did not in fact do so, at least did not do so in a proper manner. The evidence for plaintiff does not bear out [5] In this connection, if we concede that error was committed in giving plaintiff's instruction No. 8, where the jury are told that the policy is a valued policy, and that it conclusively fixed the amount of insurance as the amount of the damages or loss, no possible harm could have resulted to defendant, since the sound value of the property was found to be more than the insurance, and the loss was found to be total. [6] It appears that plaintiff had made what is termed "proof of loss," in which her claim of damage was stated to be a sum which was less than the amount of the insurance. These proofs were offered in evidence, and In these circumstances [7] The record discloses that evidence in rebuttal was heard in plaintiff's behalf of what the fire warden of Wichita had said in condemning the standing walls of the. building after the fire, and that he refused a permit to reconstruct the building to those walls. This was objected to by defendant on the ground of hearsay, and the objection overruled. It is enough to say of this objection that defendant had gone over the same ground with its adjuster when he was on the witness stand. suggests that its offense, if offense it be, was not objected to by plaintiff. We think the point not well made. Defendant's brief [8] Finally, it is insisted that error was committed in permitting the verdict to stand The objection is as to the attorney's fee. based on the ground that, since the jury did not assess a penalty against defendant for vexatious refusal to pay the loss, an at torney's fee could not be allowed. The statute (section 7068, R. S. 1909) reads as follows: "In any action against any insurance company to recover the amount of any loss under a policy of fire, life, marine or other insurance, if it appear from the evidence that such company has vexatiously refused to pay such loss, the court or jury may, in addition to the amount thereof and interest, allow the plaintiff damages not exceeding ten per cent. on the amount of the loss and a reasonable attorney's fee; and the court shall enter judgment for the aggregate sum found in the verdict." It is true that an attorney's fee cannot be allowed against a defendant insurance company, unless there has been a vexatious refusal to pay the loss, and the jury were so directed in the instructions; but it does not follow that the jury were compelled to assess the penalty. The statute is that they "may" assess a penalty "and" an attorney's fee. The statute is in the nature of a penalty, and it is not essential that the full punishment be inflicted. It is true that vexatious delay was an issue, and that the verdict should find on the is sues. But, under the instructions, when the jury found for an attorney's fee it was a finding of vexatious delay. If a penalty had also been assessed, the verdict need not have stated in words that vexatious delay was found. The mere assessment of a sum as a penalty would have sufficed; and so with the attorney's fee. The sharp contest of the case at the trial has made a record with many points of objection. We cannot well make specific mention of all of them. We have, however, given all due consideration, and have concluded that no error was committed materially affecting the merits of the controversy, and that the judgment was for the right party. It is therefore affirmed. All concur. McCUNE v. HOUSTON et al. (Kansas City Court of Appeals. Missouri. April 21, 1913.) 1. TRIAL (8 252*)-INSTRUCTIONS BILITY TO EVIDENCE. APPLICA Submitting to the jury, in an action against brokers for damages for not executing an order to sell, the question whether an order was one to sell 150 shares, when the proof was that it was to sell 200 shares, 50 more than the principal had, and when there was no proof that this was such an order as he had any right to make, it involving the necessity of their advancing more money to him, which they were repeatedly declining to do, and when, if any custom by which the extra 50 shares could be borrowed was shown, it was not shown to be applicable to the state of facts existing between the parties, was error. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*] 2. COMPROMISE AND SETTLEMENT (§ 5*)-ACCEPTANCE OF CHECK. A check sent a principal by his brokers as the balance due on the account between them not being sent in a way to indicate it was offered in settlement of any damages accruing to him because of their failure to obey an order to sell, his accepting and cashing it is not conclusive of such a settlement. [Ed. Note.-For other cases, see Compromise and Settlement, Cent. Dig. §§ 10-16; Dec. Dig. § 5.*] Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge. Action by W. H. McCune against W. R. From an order susHouston and another. taining defendants' motion for a new trial, plaintiff appeals. Affirmed. Kimbrough Stone and Bowersock, Hall & Hook, all of Kansas City, for appellant. Lathrop, Morrow, Fox & Moore, of Kansas City, for respondents. kers doing business in Kansas City. Plaintiff TRIMBLE, J. Defendants are stockbrochase and sale of stocks prior to the time had placed orders with them for the pur involved herein, and understood the course of dealing and the respective rights of each. About August 6, 1907, he had become the owner of 150 shares of Amalgamated Copper stock purchased for him by defendants. them something over $10,000, a part of At this time and thereafter plaintiff owed which was for the purchase price of the stock bought for him, and which stock defendants held as collateral security for plaintiff's indebtedness. On September 29, 1908, defendants notified plaintiff by letter that they were unwilling to extend or carry the loan any longer. October 3, 1908, plaintiff by letter ordered defendants to "kindly enter my open order to sell 200 Amal. Copper at 85 and buy 100 at 75," and requested a reply by letter, as he would be out of the city except on specified days of the week. On the same day plaintiff wrote defendants asking them to let his note run for a while, as he would be in a better shape to meet it shortly. Defendants did not reply to the letter ordering a sale of 200 Amalgamated Copper at 85, but did answer the other letter saying his note was past due and that they had carried him through a bad market depression and that his account would exhaust at 724. That is, if the market price went down, the lowest price at which it could be sold and realize enough to pay plaintiff's indebtedness would be 724. They also notified plaintiff in said letter that they did not care to risk their capital to protect his account and that when the stock reached the above figure they would have to sell to pay his indebtedness. Plaintiff did nothing in regard to taking care of his indebtedness although repeatedly requested to do so. And on December 2, 1908, defendants wrote plaintiff again assuring him they could not carry his 150 shares beyond the funds in hand and that they had placed a stop loss order on them at 734. This meant that if the market went to as low a figure they would be For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes compelled to sell in order to protect them-dence that the plaintiff ordered the defendselves. Prior to this, Amalgamated Copper ants in October, 1908, to sell the stock at had been going up, and on November 8, 1908, $85 per share, and if you further find that plaintiff wired defendants to sell his 150 such order was to sell 150 shares of stock, shares at 88.50, but the market never went and defendants failed to execute the same that high. Again on January 2, 1909, plain- and could have executed the same at said tiff wrote not to sell the stock for less than price, and afterwards defendants sold said 85%, but after this was written, the stock stock in January, 1909, at 73% per share never reached this figure. When it began to | without the waiver of the previous order on decline, defendants on January 30, 1909, sold the stock at 73%, the highest market rate obtainable, and applied the proceeds to the payment of plaintiff's indebtedness and remitted the balance to plaintiff. To this plaintiff replied February 8, 1909, saying he could not accept their action in selling his stock as final and that he was preparing to proceed against them based on their promise of protection and their failure to do so and their failure to execute one of his selling orders. It the part of the plaintiff and without the authority of the plaintiff, then your verdict will be for the plaintiff unless you believe from the greater weight of the credible testimony that the defendants offered the sum of $24.92 in full settlement of all claims and plaintiff accepted it as such, and you may as sess his damages at the difference betwee what the plaintiff would have received hac the stock sold at $85 per share and what he did receive when it sold at $73%." The jury returned a verdict for plaintiff, and a motion for new trial was sustained because of error in giving said instruction. From this or der plaintiff appeals. [1] The court did right in granting a new trial. It is not necessary for us to specify all the alleged errors that may have been committed in giving said instruction. If it contains one error, that is sufficient to justify the court's action in granting a new trial. To our minds the most apparent error is in submitting to the jury the question whether the order of October 3, 1908, was an order to sell 150 shares at $85 when the proof was that the order was to sell 200 shares at that figure or 50 more than plaintiff had and there was no proof that this was such an order as plaintiff had any right to make, since it involved the necessity of defendants advancing more money to plaintiff, something they were repeatedly declining to do. As stated before, if there was a custom by which the extra 50 shares could be borrowed, and even if evidence of such custom was admissible under the pleadings as they stood, still there was no evidence tending to show that such custom was applicable to the state of facts existing between plaintiff and defendants. On the contrary, the inference is that plaintiff himself did not consider the custom applicable, nor that the order was one to sell his holdings at $85, since he made no complaint when notified that it was not executed and later ordered a sale of the precise number of shares owned by him at higher prices, which prices were never reached, and therefore his order could not be ex The suit is for damages sustained by reason of the failure of defendants to sell the stock at $85 as ordered by plaintiff. The petition alleges that the 150 shares of stock were in defendant's possession with instructions to sell same whenever plaintiff should order the same sold and that defendants agreed for a consideration to sell same. further alleges that when said stock reached $85 plaintiff ordered them to sell it, but defendants failed to do so, and afterwards without authority sold said stock at $73%. The damage asked is the difference between the amount which would be realized from a sale at $85 and that received from a sale at $73%. The defense was that no order to sell the 150 shares at $85 was ever given. An order to sell 200 shares at $85 was given, but this was 50 shares more than plaintiff had. There was some attempt to show that there was a custom by which, when an order was received to sell more than a customer had, the excess shares were in some way "borrowed" and the sale made according to the order. Whether evidence of this custom was admissible or not under the pleadings, there was no showing that such a custom applied to a situation here disclosed, where the brokers were declining to buy more for the customer and were urging the latter to take care of his indebtedness, and assuring him they could no longer carry the indebtedness but would have to sell if the stock reached a certain figure in its descent. This figure was on January 18, 1909, placed at 73% good until the close of business January 30, 1909. At the close of the testimony | ecuted. defendants demurred and this was overruled. But one instruction was given. That was in behalf of plaintiff, and reads as follows: "The court instructs the jury that if you believe from the greater weight of the credible testimony that the plaintiff was the owner of 150 shares of Amalgamated Copper stock in October, 1908, and the defendants er there was a settlement made by the acwere the agents for a consideration to sell [2] Defendants contend that, inasmuch as plaintiff accepted and cashed a check for $24.92 sent him by defendants as the balance due on the account between them, therefore all matters in dispute between the parties were settled and the court should have so declared. We think the question of wheth ceptance of this check might be a question [Ed. Note.-For other cases, see Master and instructions, since the check was not sent | and his prospective earnings to the end of the in any way to indicate that it was offered contract period. in settlement of any damages accruing to plaintiff by reason of failure to obey an order to sell. While ordinarily in civil cases the character of the parties is not relevant and testimony concerning it is inadmissible, yet, in an action for wrongful discharge, where plaintiff was on cross-examination asked if he had not been convicted and fined for disturbing the peace, and the defendant put in evidence the judgment of conviction, evidence of plaintiff's reputation for morality and truthfulness was admissible. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1165, 1166; Dec. Dig. § 360.*] 3. MASTER AND SERVANT (§ 30*)-DISCHARGE -GROUNDS. A master cannot discharge the servant engaged for a stipulated time for rudeness, where he has goaded him into desperation and has provoked him to rude and discourteous behav ior. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 30-36; Dec. Dig. § 30.*] 4. TRIAL (8 256*)-INSTRUCTIONS-NECESSITY OF REQUEST. Where an instruction used the words "reasonable cause" and the appellant failed to request an instruction embodying a definition, the failure of the court to define the term is not error. [Ed. Note. For other cases, see Trial, Cent. Dig. 88 626-641; Dec. Dig. § 256.*] 5. MASTER AND SERVANT (8 44*)-ACTIONS FOR WRONGFUL DISCHARGE-INSTRUCTIONS. In an action by a servant for wrongful discharge, where the defense was that he was discourteous and impolite to the president of the company and customers, an instruction that if he was discourteous to the president, yet, if he had reasonable cause for so being, such behavior would not justify a discharge, was not error as a charge that rudeness to customers was not cause for discharge. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 59; Dec. Dig. § 44.*] 6. MASTER AND SERVANT (8 41*)-WRONGFUL DISCHARGE-ACTIONS-RECOVERY. Where a servant is wrongfully discharged, he may, in an action brought only three months before the end of the term for which he was engaged, recover from the master wages for the whole contract period, less the amount earned from other sources until the time of the trial Servant, Cent. Dig. §§ 12, 50-53; Dec. Dig. § 41.*] Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge. Action by Myron E. Ross against the Grand Pants Company. From a judgment for plaintiff, defendant appeals. Affirmed. See, also, 241 Mo. 296, 145 S. W. 410. Gerson B. Silverman, of Kansas City, for appellant. Joseph P. Fontron, of Kansas City, for respondent. TRIMBLE, J. This is an action by an employé to recover damages for a wrongful discharge. Plaintiff was employed by defendant to act as the general manager of its selling department in the tailoring business. The employment was for a year beginning week to be paid weekly during the whole October 7, 1907, and at a salary of $40 per of said time. On the 5th day of December, 1907, plaintiff was discharged without his consent. The suit was instituted December 24, 1907, and the trial had July 2, 1908, three months and five days before the expiration of the employment term. All the foregoing facts are admitted. The controversy at the trial was whether or not there was just cause for the discharge. The defendant claimed that the plaintiff was discharged because he was rude, discourteous, and insolent to defendant's president, as well as to the other employés of defendant and to customers; because plaintiff disturbed the peace and quiet of said customers; and because he had attempted to disorganize defendant's business and its systematic working, and had tried to induce defendant's employés to quit their positions. Plaintiff denied this, claiming that his discharge was without just cause or excuse. [1] The issue thus raised was submitted to the jury resulting in a finding for plaintiff and judgment thereon was duly rendered. with a verdict against defendant for $810, Unless reversible error was committed in the trial, it is our duty to affirm this judgment, since it is not within our province to weigh the evidence or to pass on the facts. The appeal was taken to the Supreme Court on the ground that a constitutional question relating to trial by jury was involved. That tribunal, after considering the case, held that no such question was involved and transferred the case to this court. 241 Mo. 296, 145 S. W. 410. [2] Defendant alleges error because the trial court admitted, over defendant's objection, the testimony of two of plaintiff's witnesses in rebuttal who testified to plaintiff's general reputation for morality and truthfulness. In civil cases the character of the parties is not relevant, nor is testimony con For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |