Hilburn v. Phoenix Insurance Co.

• Decision Date: 10 January 1910
• Citation: 124 S.W. 63,140 Mo.App. 355
• Parties: SUSAN HILBURN, Respondent, v. THE PHOENIX INSURANCE COMPANY, Appellant
• Court: Missouri Court of Appeals

124 S.W. 63

140 Mo.App. 355

SUSAN HILBURN, Respondent, v. THE PHOENIX INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, Springfield

January 10, 1910

Appeal from Barton Circuit Court.--Hon. J. B. McGilvray, Special Judge.

Judgment affirmed.

Fyke & Snider and Cole, Burnett & Moore for appellant.

(1) The law favors compromises and settlements, and when parties in good faith make such offers, but fail to effect a settlement they should not be paraded before the jury, who are too apt to draw the inference, from just such answers as in this case, that the defendant thereby acknowledged its liability. Columbia Mill Co. v. Insurance Co., 59 Mo.App. 207; Gorham v. Auerswald, 59 Mo.App. 77; Fink v Insurance Co., 60 Mo.App. 677; Railway v McGrew, 104 Mo. 298; Railway v. Eby, 152 Mo. 606; Cullen v. Insurance Co., 126 Mo.App. 424. (2) The evidence was not sufficient to show that the plaintiff furnished the company with proof of loss within the time required under the policy. Welsh v. Life Soc., 81 Mo.App. 36; Best v. Insurance Co., 68 Mo.App. 602; 16 Cyc. 1069; Phelan v. Insurance Co., 113 N.Y. 147, 20 N.E. 827; Uhlman v. Brewing Co., 53 F. 485; Fleming Co. v. Evans, 9 Kan.App. 858; Insurance Co. v. Fields (Tex.), 26 S.W. 280. (3) The demurrer to the evidence should have been sustained for this reason, if for no other. Hanna v. Insurance Co., 36 Mo.App. 538; Maddox v. Insurance Co., 56 Mo.App. 343; Porter v. Insurance Co., 62 Mo.App. 528; Burgess v. Insurance Co., 114 Mo.App. 179. (4) "An insured resorting to fraud and false swearing has no standing in a court of justice and cannot collect any part of his claim; and it makes no difference that the different articles of property of different valuations are servable and the fraudulent claim is as to one of such articles." Hall v. Association, 106 Mo.App. 476; Ostrander on Insurance, sec. 174, p. 445; Modern Woodmen v. Angle, 127 Mo.App. 114; School District v. Insurance Co., 61 Mo.App. 597; Cagle v. Insurance Co., 78 Mo.App. 436; Feary v. Railway, 162 Mo. 105; Dolan v. Insurance Co., 88 Mo.App. 675; Vette v. Evans, 111 Mo.App. 588; Oglesby v. Railway, 150 Mo. 177. (5) Plaintiff had but the one instruction on the merits of the controversy, and it authorized a recovery simply on the showing that the property was destroyed by fire at a certain date, ignoring everything else in issue except fraud. Under all the authorities this was error. Wojtylak v. Coal Co., 188 Mo. 283; Waters-Pierce Oil Co. v. Zinc Co., 98 Mo.App. 324; Stewart v. Andes, 110 Mo.App. 243; Abbott v. Mining Co., 112 Mo.App. 556; Johnston v. Railway, 117 Mo.App. 308.

H. W. Timmonds for respondent.

(1) The trial court did not commit any error in overruling defendant's motion to strike out part of plaintiff's amended petition. Walser v. Wear, 141 Mo. 462; State ex rel. v. Bank, 160 Mo. 646; Scovill v. Glasner, 79 Mo. 449; Davis v. Boyce, 73 Mo.App. 563; School District v. Wallace, 75 Mo.App. 322; Hurley v. Railroad, 57 Mo.App. 680. (2) While offers of compromise are, as a rule, inadmissible in evidence, a distinction is made between the admission of particular facts and an offer of a sum of money to buy peace. 1 Greenleaf on Evidence (14th Ed.), sec. 192; Wood v. Duffy, 127 Mo.App. 543; Moore v. Mfg. Co., 113 Mo. 111. (3) All matters of defense under the terms of the contract, or policy, must be specially pleaded to make them issuable. Burgess v. Insurance Co., 114 Mo.App. 188; Hester v. Insurance Co., 69 Mo.App. 194; Ostrander on Fire Insurance (2d Ed.), sec. 591; McComas v. Insurance Co., 56 Mo. 573; Crenshaw v. Insurance Co., 71 Mo.App. 48; Dezell v. F. & C. Co., 176 Mo. 296; LaForce v. Insurance Co., 43 Mo.App. 518; Flanders on Insurance, pp. 541, 542. (4) A letter addressed to the defendant at Chicago, stamped and mailed, is evidence that it was received by the defendant in Chicago. McFarland v. Accident Ass'n, 124 Mo. 219; Cromwell v. Insurance Co., 47 Mo.App. 109; Bank v. Latimer, 64 Mo.App. 321. (5) Knowledge or notice to an agent, acquired by the agent during his agency and referring to a transaction within the scope of his authority, is knowledge or notice to his principal. Hayward v. Insurance Co., 52 Mo. 181; Hedrick v. Beeler, 110 Mo. 91; Thompson v. Insurance Co., 169 Mo. 25; Kenneth Inv. Co. v. Bank, 96 Mo.App. 142; Planing Mill v. Insurance Co., 59 Mo.App. 204; Hamilton v. Insurance Co., 94 Mo. 368; Mers v. Insurance Co., 68 Mo. 127. (6) When a fire insurance company takes a risk on property in this State, and the value is fixed and the risk taken on a given amount, that sum can not be questioned in any proceeding. R. S. 1899, sec. 7979; Gibson v. Insurance Co., 82 Mo.App. 515; Gragg v. Insurance Co., 132 Mo.App. 405; Crossman v. Insurance Co., 133 Mo.App. 537; Howerton v. Insurance Co., 105 Mo.App. 582; Burge v. Insurance Co., 106 Mo.App. 244; Hanna v. Insurance Co., 109 Mo.App. 158.

OPINION

NIXON, P. J.

Susan Hilburn, the respondent, on the 14th day of June, 1906, was living at Minden Mines, Barton county, Missouri. One H. C. Chancellor was the local agent of The Phoenix Insurance Company at that place. The appellant through its said agent issued the respondent a policy of insurance against fire for a period of three years from that date, whereby, in consideration of the payment by respondent of a premium and policy fee, respondent was insured against fire in an amount not to exceed five hundred dollars upon household and other goods while contained in a building specified in the policy in the town of Minden Mines.

The petition alleges the taking out of the policy, the payment of the premium, the amount of the policy--five hundred dollars--a description of the property insured, and that the building in which the articles insured were kept was a shingle roof frame building; that the articles insured were of the value of eight hundred dollars, and that the insurance was to run for a period of three years from June, 1906. Further, that at the time the policy was issued, she was the sole and unconditional owner of the property insured; that in August, 1906, after the policy was issued and while it was in force, the property was totally destroyed by fire, and that respondent's damage and loss amounted to the sum of eight hundred dollars, the value of the goods on that date. That within six days after the loss by fire, she gave the defendant notice in writing of the loss, and within thirty days from the date of the fire, rendered a particular and specific account of such loss which was signed and sworn to by her stating that there was no other insurance on the property and gave the written portion of such policy thereon; that she also gave thereon the actual cash value of such property, specifically stated, and her interest therein, and that it was not incumbered, and when and how the fire originated. Respondent further alleged that at the request of appellant, she submitted to an examination under oath by agents and representatives of the appellant and subscribed to such examination when reduced to writing, and that she exhibited to the agents of appellant all that remained of the property that was covered by the policy for their examination. That she and the appellant failed to agree on the value of and damage to the property covered by said policy, and that she afterwards offered to submit the amount of loss or damage to competent arbitrators, as provided for in said policy, but that appellant refused. That she had performed fully all the conditions of the policy in due time after the fire. She asked judgment for five hundred dollars with interest at six per cent from the 19th day of September, 1906.

A general demurrer was filed to this petition, which was by the court overruled.

Subsequently, the defendant below filed a motion to strike out parts of the petition on the ground that the matter sought to be stricken out was irrelevant and frivolous and was merely an effort to create prejudice against the defendant. The language sought to be stricken out is as follows: "The plaintiff further states that she has submitted, at the request of the defendant, to examination under oath by agents and representatives appointed by the defendant and subscribed to such examination when reduced to writing and exhibited to the agents and representatives of the defendant all that remained of the property that was covered by this policy, damaged or not damaged, for their examination for this defendant. Plaintiff further states that she and the defendant failed to agree upon the amount of sound value and of damage to the property covered by said policy and she afterwards offered to submit the amount of loss or damage to competent and impartial arbitrators, as provided for in said policy, but that the defendant has failed, refused and neglected to submit to such arbitration the amount of loss or damage to the property covered by said policy." This motion was by the court overruled.

The answer filed by the appellant pleaded seven separate defenses--after setting up a general denial--which are briefly stated as follows:

1. That whereas the policy covered the goods "while situate on and confined to, premises actually owned and occupied by insured," she never owned the premises, but was tenant only.

2. That plaintiff was not the sole owner of the goods, her husband having an interest therein.

3. That in her oral application she had misrepresented as to previous fires, stating that she had had none, whereas she really had had three.

4. That in her application she had grossly misrepresented as to the value of the goods she wanted insured.

5. That the day before the fire she had purchased and taken home a gallon of gasoline, in violation of the policy, she having no gasoline stove.

6. That in her alleged...