region mentioned was in natural condition. | sion and the police court the next day, and The physician in defendant's employ, who at- he said nothing about being hurt, and walked tended plaintiff shortly after the occurrence, as strong as any man; and that one witness and investigated the extent of her injury, asked him if he was hurt, and he said, "No." found no evidence of an injury or fracture, III. That Kennedy v. St. Louis Transit Co., and the position of the bone normal. She supra, states a correct rule of law, we need was in bed when he visited her, but sat up not decide. It is evident the court concluded, during his visit, and walked around the as a matter of law, from common knowledge, room. It would have been impossible for that the actions of plaintiff in walking to her to sit up, move, or walk if such fracture her place of employment afterwards rendered had occurred, and the injury indicated was innocuous the testimony that her hip or pelof such rare character that many practi- vic bone, the coccyx, was fractured; in other tioners never encountered it. words, the court deemed it highly improbable or impossible for her to have suffered such an injury, on walking immediately thereafter.

Defendant's argument runs thus: The undisputed testimony is that the plaintiff has a dislocated rib and an injury to his back which will likely be permanent; but the overwhelming weight of the evidence in this case shows, whether plaintiff's evidence be considered or the whole of the evidence, that he was not injured in the collision described in this record.

[1, 2] II. While we are inclined to scrutinize the probative force of the evidence with respect to the injury occurring in the collision described in the record, nevertheless we take the view that the question presented by the record involves only the weight of the evidence, and that question was solely for the trial court to determine. While appellate courts have, in some instances, exercised a supervising control over trial courts, even to the extent of declaring verdicts the result of passion and prejudice on the part of the jury, such verdicts have been interfered with only when it clearly appeared that injustice would result.

[3] It is true the record demonstrates no complaint or claim on the part of plaintiff to any one, except his physician, either at the time of the collision or afterwards, until about the time suit was filed a year and 7 months later; that he was not corroborated by any witness as to being jammed in between the steering wheel; that no one testified to observing, at the scene of the collision or afterwards, any symptoms or expressions of pain or any indication of injury in his manner of walking; that plaintiff's expert, Dr. Todd, stated he could not have walked around the day after his rib was dislocated without having some pain, and he could not conceive of his having normal motion without having some symptoms of pain or discomfort. It is further true that defendant's testimony tends to show that she and others saw and talked to plaintiff at the scene of the colli

The situation in the instant case is not analogous. The collision, the dislocated rib, and the back immobilized with bandages, were established with reasonable certainty. While Dr. Todd deposed that the injury would of necessity be painful at the time, and the greatest tenderness would follow in 24 to 36 hours, yet, in answer to the question, "If he walked at all he would feel it?" he replied: "It depends on how well he was immobilized. If you immobilize the back thoroughly by your adhesive plaster and bandages, you can get along fairly well; that is a most excruciating pain. If you plaster a man well he can move around and breathe, within a minute after, it depends on the skill with which the plaster was placed and the tension on the part; now that might or might not result." Dr. Wilder stated he immobilized the parts with bandages and strips of adhesive. Plaintiff stated that he did not tell any one he was hurt, because he did think it would amount to very much.

We do not think that plaintiff's actions and demeanor were so opposed to the natural and so improbable that we can say it was highly improbable or impossible for him to have suffered the injuries in the collision described.

The Commissioner recommends that the judgment be affirmed.

PER CURIAM. The foregoing opinion of DAVIS, C., is adopted as the opinion of the court.

The judgment of the circuit court is accordingly affirmed.

DAUES, P. J., and BECKER and NIPPER, JJ., concur.

(273 S.W.)

OFFUTT v. NATIONAL FIRE INS. CO. OF
HARTFORD, CONN. (No. 18856.)

(St. Louis Court of Appeals. Missouri. June 2,

1925. Rehearing Denied June 25, 1925.)

1. Insurance 665 (3)—Evidence held not to show false representations by insured as to model of automobile.

In action on fire policy for destruction of plaintiff's automobile, evidence merely showing that serial number of automobile was for a 1919 model, and that engine in car was manufactured late in 1918, held not to show that plaintiff falsely represented and warranted automobile a 1919 model.

2. Insurance 612(3)

Appraisal condition precedent to bringing of suit, unless waived or modified by subsequent mutual agreement.

Unless insured and insurer agree to modify or waive appraisal provisions of a fire insurance policy by a subsequent mutual agreement, an sppraisal is a condition precedent to suit by insured for destruction of insured property.

3. Insurance 144(1) Subsequent mutual agreement modifying appraisal provisions of policy, need not be in writing.

The subsequent mutual agreement, modify ing or waiving appraisal provisions of a fire insurance policy, need not be in writing.

4. Insurance 665 (8)—Evidence held to show waiver of appraisal provision by subsequent agreement.

Evidence that, after destruction of insured's automobile by fire, insurance adjuster and plaintiff agreed that estimate of a garage man was to act as an appraisal, held to show waiver of appraisal provision in policy by subsequent mutual agreement, entitling insured to sue.

5. Insurance ~646(8)—Burden on insurer to prove depreciation of real property at time of fire, while burden on insured when personal property involved.

As respects total destruction of insured property, Rev. St. 1919, §§ 6229, 6230, applies only to real property, whereas, section 6239 applies to personal property, and, under former sections, burden of showing value of property destroyed is on insurer, while, under latter section, burden is on insured.

6. Insurance 494-Statute held applicable, where destruction of insured personal prop'erty is only partial.

Though question of total loss of insured personal property is for jury, where facts are controverted, and destruction is only partial, Rev. St. 1919, § 6231, governs, and such section controls over provision in policy giving insurer option of repairing or paying, and gives policy holder right to be paid the loss.

Appeal from Circuit Court, Audrain County; Ernest S. Gantt, Judge.

"Not to be officially published."

Action by W. J. Offutt against the National Fire Insurance Company of Hartford, Conn Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Clarence A. Barnes, of Mexico, Mo., for appellant.

and A. C. Whitson, of Mexico, Mo., for re

Leahy, Saunders & Walther, of St. Louis,

spondent.

DAVIS, C. This is an action on a fire insurance policy for the destruction by fire of plaintiff's Oakland automobile. The court directed the jury to return a verdict for defendant, which was accordingly done, and, after the motion for a new trial was overruled, plaintiff appealed from the judgment entered thereon.

The record shows that defendant requested a directed verdict at the close of plaintiff's evidence, which the court refused, but thereafter, at the close of the whole case, on defendant's renewed request, the court ordered the jury to return the verdict for defendant.

Plaintiff's petition follows the prescribed form relative to suits on fire insurance policies. Defendant later filed a plea in abatement and an answer on the same day. The plea in abatement states, in substance, that a disagreement arose between plaintiff and defendant as to the amount of loss and damage occasioned by the fire, and that defendant, pursuant to the terms of said policy, demanded an appraisal, and named an appraiser, but that plaintiff refused to appoint an appraiser or have the loss appraised as the policy required.

The answer, after generally denying, set forth, in substance, the allegations of the plea in abatement relative to an appraisal and the refusal of the plaintiff to accede to an appraisal. The answer further pleads the violation of a warranty, in that plaintiff falsely represented the model of the automobile to

be of the year 1919, when in truth the model null and void. The answer finally pleads that was of the year 1918; the policy becoming defendant has always been ready to pay the actual cash value, and has offered to pay $300, which plaintiff refused, but defendant made the offer before it acquired knowledge that the automobile was a 1918 model, and refused to agree to an appraisal; that the policy provides that no suit or action shall be sustainable unless the assured shall have complied with its requirements; that plaintiff refused and failed to comply with the provisions of said policy, which became null and void because plaintiff violated its provisions before and after the loss, and failed to comply with its terms; that defendant tenders in court $8.98, the amount of the premiums and interest.

Plaintiff replied to the plea in abatement and answer by alleging that the automobile was totally destroyed and a total loss; that the appraisement was waived by defendant; that defendant refused to furnish proofs on demand; that defendant requested plaintiff

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 273 S.W.-11

to furnish a replacement estimate of automo-, or equity unless the insured shall have fully bile and parts and agreed on Gus Sunnen to furnish an estimate; that Sunnen furnished an estimate to plaintiff, who in turn furnished it to defendant, but defendant refused to abide by it; that defendant did not demand an appraisal within 60 days as the policy provided; that defendant inspected the automobile immediately after the fire. Plaintiff offered and the court received in evidence the policy sued on. It insured plaintiff's automobile against the peril of fire for one year ending noon April 1, 1923, in the amount of $500, for the sum of $8.25. Under warranties, the policy stated that the automobile was "purchased by the insured June, 1919, new; actual cost to insured, including equipment, $1,190. The pertinent portions of the policy read:

(273 S.W.)

have to appraise it," plaintiff saying, “All right," and adjuster afterwards mailed him, under common postage, appraisal blanks in May, during week of 17th. That the serial number was an early 1919 model, but the motor number was for a 1918 motor, but he found it was assembled by the factory and put out as a new car. That there was no differences in the model of the engine that was put out in 1918 and 1919. That the two tires were worth $12 to $15. That they were not blistered, the dirt and mud was hardly burned off. That the adjuster told plaintiff he would put the car in first-class condition. That the automobile before the fire was not worth over $200. That the adjuster wrote plaintiff as follows: "After examining your fire loss to Oakland touring car and thoroughly investigating same, the writer is willing to send you a proof of loss to the amount of $300, provided this is satisfactory to you. If so, kindly advise at once." That the adjuster, jointly with plaintiff, asked the garage man to make an estimate, and told him they were not denying or assuming liability. That the market value of a 1919 Oakland car, 1918 engine in good mechanical condition, was $175 to $200. That in May, week | of 17th, 1923, adjuster mailed appraisal request notice to plaintiff in care of its insurance agent, which both plaintiff and insurance agent denied receiving, communicated to the adjuster, but which the adjuster said was never returned to him, although it had a return address on it.

Jones, witness for defendant, placed a reasonable market value of $300 on the car before the fire. Another witness for defendant said it was worth at Mexico $225 to $235. Such further facts as are pertinent will be referred to later.

Plaintiff testified he purchased the car in June, 1919, a new car. Defendant's adjuster and witness testified that the serial number is an early 1919, but the motor number is for a.1918 motor, a late 1918; that he took it up with the Oakland Motor Car Company, and they told him the serial number was 1919 early and the motor number was 1918; that they said that often occurs, that they told him, though, this motor and this body came together and were assembled together; that in December, 1918, they came out with the 1919 model; that a man buying a serial number for 1919 in June, 1919, got a 1919 model; that they possibly sold it as a 1919 model car, although they did not tell him that, he did not say anything about it to them, and all he was after was the information of the year of the motor; that there was not a bit of difference in the model of the engine put out in 1918 and 1919; that, if they manufactured more engines than bodies in 1918, they would run them over in the serial number of 1919.

Plaintiff's evidence tends to show that he purchased a new 1919 model Oakland car in June, 1919. Defendant's evidence, while unobjected to, was hearsay and of little probative force, if any. Defendant's evidence does not tend to show that plaintiff did not purchase the car new in 1919, but, on the other hand, positively shows that the serial number was for a 1919 model, and goes no further than tending to show that the engine in the car was manufactured late in 1918. It is clear that the cause, on this ground, should not have been taken from the jury.

[2] III. Was an appraisal a condition precedent to plaintiff's right to institute suit? The appraisal provisions in the policy in suit are similar to and of the same force and effect as the appraisal provisions noted in Se

I. The action of the trial court in peremp-curity Printing Co. v. Conn. Fire Ins. Co., torily ordering the jury to return a verdict for defendant is challenged. Defendant, on the other hand, seeks to sustain the court's ruling, because (1) the assured represented and warranted the car to be a 1919 model, which false statement was material to the risk and avoided the policy; (2) the failure of plaintiff, after disagreement as to the amount of loss, to request an appraisal was a condition precedent and the suit was prematurely instituted.

[1] II. We see nothing in defendant's contention that plaintiff falsely represented and warranted the automobile a 1919 model. The facts in the record fail to approximate the contention. The policy reads:

"(2) The following is the description of the automobile: Year, 1919, model C; trade-name, Oakland; type of body, touring; factory or serial number, 8284134; motor No. 62102; No. of cylinders, 6.

"(3) The facts with respect to the purchase of the automobile described are as follows: Purchased by the insured June, 1919, new. Actual cost to insured, including equipment, $1,190."

209 Mo. App. 422, 240 S. W. 263; and similar appraisal clauses have been upheld by our Supreme Court. Dworkin v. Caledonian Ins. Co., 285 Mo. 342, 226 S. W. 846. Therefore, unless plaintiff and defendant agreed to modify or waive the provisions of the policy by a subsequent mutual agreement, an appraisal was a condition precedent to the institution of the suit. In Security Printing Co. v. Conn. Fire Ins. Co., supra, loc. cit. 441 (240 S. W. 269), respecting a subsequent written agreement for an appraisal, the court, quoting from Hall v. Ins. Co., 57 Conn. 105, 17 A. 356, said:

"But the capacities of the parties to contract could not be restricted by the policy so that they could not waive its requirements and make a submission to suit themselves, provided of course it was not otherwise unlawful."

Plaintiff contends that the provisions of fied and waived by the agreement to have the policy respecting an appraisal were modiSunnen, the garage man, make and furnish an estimate. The evidence tends to show that Sunnen shortly after the fire made an es

timate and furnished it to plaintiff, who in, replacements. However, he set forth a stateturn forwarded it to defendant. Regarding ment of the parts needed to reconstruct the the agreement in that respect between plain- automobile, which then became a known tiff and defendant's adjuster, we quote from quantity, the cost of which defendant was in plaintiff's testimony: a position to obtain. Furthermore, the record contains no objection by defendant to the estimate in the form presented. Even if the estimate furnished by Sunnen was abortive, it is clear from the evidence that it did not occur through any fault of plaintiff. Plaintiff was then entitled to bring an action on the policy. Security Printing Co. v. Conn. Fire Ins. Co., supra, loc. cit. 443 (240 S. W. 263).

"It was after this meeting of the first, he was here in town, and I met him at Mr. Barnes' office, and we were talking about it, and he said that we were talking along the lines of what the damage was, and he said he would like to have it estimated, and I agreed with him, so he asked who would we get, and I said Mr. Sunnen had worked on the car and knew it better than most any mechanic in town, and he said that he had had some dealings with Mr. Sunnen and knew him, so we went around to Mr. Sunnen's shop and Mr. Sunnen agreed to go out with me."

Defendant's adjuster testified, in connection with Mr. Sunnen's contemplated visit to the automobile to make an estimate, that he offered to have the car repaired. The following questions and answers appear in his testimony:

"Q. You accompanied Mr. Offutt down to Mr. Gus Sunnen's place of business? A. Yes,

sir.

[5, 6] IV. Plaintiff, contending the evidence tends to show a total loss, thinks the rule applicable is stated in sections 6229 and 6230, R. S. 1919. It is held by our Supreme Court in banc in State ex rel. v. Cox, 270 S. W. 113, that those sections apply only to real property and not to personal property. The case in the Supreme Court referred to further holds that section 6239 applies to personal property, and, in noting the distinction between sections 6229, 6230 and section 6239, it construes sections 6229, 6230 as placing burden of showing depreciation on the defendant, while, under section 6239, the burden is placed on plaintiff to show the value of the property at the time it was destroyed. While the question of the total loss relative to personal property is always for the jury where the facts are controverted, yet we think this cause, relative to damages, is governed by section 6231, R. S. 1919, reading:

"Whenever there is a partial destruction or damage to property covered by insurance, it shall be the duty of the party writing the policies to pay the assured a sum of money equal to the damage done to the property, or repair the same to the extent of such damage, not exceeding the amount written in the policy, so that said property shall be in as good condition as before the fire, at the option of the insured."

.
The above section controls over a provi-
sion in a policy giving the insurer the option
of repairing or paying, and gives the policy
holder the right to be paid the loss. Shoe
Co. v. Assurance Co., 277 Mo. 399, 210 S.
W. 37.

[3, 4] The subsequent mutual agreement modifying or waiving the provisions of the policy need not be in writing. Security Printing Co. v. Conn. Fire Ins. Co., supra, loc. cit. 441 (240 S. W. 263), and cases cited. We think that the parties by their verbal agreement modified and waived the provisions of the policy as to the appraisal clauses. Plaintiff's testimony tends to show that the adjuster said he would like to have it estimated, and plaintiff agreed to it. Afterwards they made arrangements wth the garage man to furnish an estimate, which was accordingly done. Defendant's testimony tends to show that it intended to repair the car; that plaintiff and the adjuster proceeded to Sunnen's shop, the adjuster asking Sunnen to go out and give an estimate. We think it may be inferred from the evidence that the parties agreed that this estimate was to act as an appraisal and that it modified and waived the The Commissioner recommends that the provisions of the policy in that regard, en- judgment be reversed and the cause retitling plaintiff to have the question sub-manded. mitted to the jury. While the estimate placed a money value on labor only, it set out the needed replacements damaged by the fire. It may be inferred from the evidence, due to the inability of the garage man to estimate the replacements because the replacements would have to be furnished by the Oakland factory or procured secondhand, that the ga

What we have heretofore said in this paragraph conforms to the ruling in State v. Cox (Mo. Sup.) 270 S. W. 113, which governs our determinaton.

PER CURIAM. The foregoing opinion of DAVIS, C., is adopted as the opinion of the court.

The judgment of the circuit court is accordingly reversed and the cause remanded.

DAUES, P. J., and BECKER and NIPPER,