Hartford Fire Ins. Co. v. Bleedorn

• Citation: 132 S.W.2d 1066,235 Mo.App. 286
• Parties: HARTFORD FIRE INSURANCE COMPANY, A CORPORATION, RESPONDENT, v. EDWARD E. BLEEDORN, ELIZABETH BLEEDORN, HOME OWNERS' LOAN CORPORATION, A CORPORATION, HARRY HARRIS AND JOHN T. SLUGGETT, JR., DEFENDANTS. HOME OWNERS' LOAN CORPORATION, APPELLANT
• Decision Date: 07 November 1939
• Court: Court of Appeal of Missouri (US)

132 S.W.2d 1066

235 Mo.App. 286

HARTFORD FIRE INSURANCE COMPANY, A CORPORATION, RESPONDENT, v. EDWARD E. BLEEDORN, ELIZABETH BLEEDORN, HOME OWNERS' LOAN CORPORATION, A CORPORATION, HARRY HARRIS AND JOHN T. SLUGGETT, JR., DEFENDANTS. HOME OWNERS' LOAN CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

November 7, 1939

Appeal from Circuit Court, County of St. Louis.--Hon. John J. Wolfe Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

John T Sluggett, Jr. for Edward E. Bleedorn and Elizabeth Bleedorn respondents.

(1) A pleading should contain a plain and concise statement of the facts constituting the cause of action. Section 764, R. S. Mo. 1929. When any petition or other pleading shall be founded upon any instrument of writing charged to have been executed by the other party and not therein alleged to be lost or destroyed, the same, or a copy thereof, verified by the affidavit of the party shall be filed with said pleading. Section 815, R. S. Mo. 1929. (2) A mortgage clause in a policy that simply provides that it shall be payable to the mortgagee as his interest may appear, is called an "Open mortgage clause." Where there is merely an "open mortgage clause" there is no privity created between the Insurance Company and the mortgagee, he not being a party to the contract but merely an appointee to receive the proceeds in case of loss. Prudential Ins. Co. v. German Mutual Fire Ins. Assn., 60 S.W.2d 1008, l. c. 1009; 1 Jones on Mortgages (8 Ed.), par. 485, p. 643; In re Moore, 6 Daly (N. Y.) 541.

Redick O'Bryan, Kenneth Teasdale, Kern L. Cochrum and Vaughn C. Ball for Home Owners' Loan Corporation, appellant.

(1) Wiseman v. Ins. Co. (Mo. App.), 94 S.W.2d 908, l. c. 911; Rutherford v. Sample, 186 Mo.App. 469; McDowell v. Morath, 64 Mo.App. 290, l. c. 298; Kirchgraber v. Park, 57 Mo.App. 35; Ridge v. Home Ins. Co., 64 Mo.App. 108, l. c. 110; Ellis v. Krutzinger, 27 Mo.App. 311, l. c. 314; Colby v. Parkersburg Ins. Co., 37 W.Va. 789; Wheeler v. Ins. Co., 101 U.S. 439; Miller v. Aldrich, 31 Mich. 408; Norwich Union Fire Ins. Co. v. Citizens Bldg. & Loan Assn., 7 S.W.2d 144; 26 C. J., p. 438, secs. 588 and 590; 1 Jones on Mortgages, secs. 489-514; Annotation in 25 L.R.A. 305. (2) Stifel Brewing Co. v. Saxy, 273 Mo. 159; Holmes v. Kansas City, 209 Mo. 513; Badger Lbr. Co. v. Pugsley, 61 S.W.2d 425, l. c. 429. (3) Where a party identifies and calls for a certain document, and thereafter inspects it without challenging its authenticity, he is thereby estopped to question same when offered by the party who produced it. 22 C. J. 965, sec. 1201, and cases cited in note 53; Fenwick v. Bowling, 50 Mo.App. 516; Cummings v. Kohn, 12 Mo.App. 585; White v. Collier, 5 Mo.App. 82; Harrison v. McNergney (Mo. App.), 111 S.W.2d 191; Subscribers v. Kansas City Pub. Serv. Co., 230 Mo.App. 468, 91 S.W.2d 227; Bricker v. Gille Mfg. Co., 225 Mo.App. 989, 35 S.W.2d 662.

McCULLEN, J. Becker, J., concurs; Hughes, P. J., not sitting because not a member of the court at the time the case was submitted.

OPINION

McCULLEN, J.

This suit was begun by Hartford Fire Insurance Company, respondent, as plaintiff, by the filing of its petition, also referred to as a bill of interpleader, followed later by an amended petition in which it alleged that defendants Edward E. Bleedorn and Elizabeth Bleedorn were the owners of a certain piece of real estate on which there is a dwelling located at 4828 Ravenwood Avenue, St. Louis County, Missouri; that defendant Home Owners' Loan Corporation, an instrumentality of the United States Government, on March 19, 1934, loaned the said Bleedorns the sum of $ 2124.20 and took a note therefor secured by a deed of trust on said property; that, pursuant to the terms of said deed of trust, there was procured from plaintiff a contract of insurance, plaintiff's Certificate No. 21491, insuring the said Bleedorns and the Home Owners' Loan Corporation, mortgagee, "as their interests may appear," against loss and damage by fire from December 17, 1934, to December 17, 1937; that said certificate originally insured to the amount of $ 600 on the building therein mentioned, but on March 19, 1935, by indorsement, the amount was increased to $ 2100. Plaintiff alleged, and the evidence shows without dispute, that it was provided in said certificate:

"This Certificate is issued by the Hartford Fire Insurance Company and accepted by Home Owners' Loan Corporation under open Policy No. Mo. 5000 and is subject to the terms thereof. Subject to the stipulations, provisions and conditions contained in the open policy, the loss, if any, is payable to the assured named herein and the Home Owners' Loan Corporation, mortgagee, as its interest may appear."

Plaintiff's amended petition further alleged, and the evidence shows, that on December 13, 1936, the insured property was damaged by fire and that the claim arising from such loss was agreed to be adjusted by the plaintiff insurance company and the Bleedorns and Home Owners' Loan Corporation for the sum of $ 750; that John T. Sluggett, Jr., an attorney at law of St. Louis, Missouri, claimed a portion of said $ 750 as attorney's fees for representing Edward Bleedorn in the matter of said Bleedorn's claim for said insurance; that one Harry Harris also made claim for a part of the $ 750 for a fee as an adjuster for the Bleedorns; that said Home Owners' Loan Corporation claimed all the money due on said loss by reason of the said insurance contracts and the terms of its deed of trust. Plaintiff further alleged that it did not know which of said defendants was rightfully entitled to the fund, and prayed that the court require defendants to interplead for the purpose of determining their respective rights to said $ 750, and that plaintiff be discharged from further liability.

Defaults were entered against defendant Mrs. Elizabeth Bleedorn and defendant Harry Harris. No question arises on this appeal as to defendant Harry Harris. Defendants Edward E. Bleedorn and John T. Sluggett, Jr., each filed separate answers to the plaintiff's amended petition or bill of interpleader, and in addition each filed a separate interplea. Defendant Home Owners' Loan Corporation filed an amended answer. Defendants Edward E. Bleedorn and John T. Sluggett, Jr., treated Home Owners' Loan Corporation's answer as an interplea and filed separate answers thereto which, after a number of admissions of certain facts, not necessary to be noticed here, denied all other allegations therein.

The case, being one in equity, was tried before the court without a jury, after which the court rendered judgment awarding to defendant Home Owners' Loan Corporation the sum of $ 351 of the $ 750 fund paid into court by plaintiff; to John T. Sluggett, Jr., the sum of $ 150; and the remaining $ 249 of said fund to Edward E. and Elizabeth Bleedorn, with costs to be paid by Edward E. and Elizabeth Bleedorn. The court in its judgment decreed that defendant Harry Harris should receive nothing.

Defendant Home Owners' Loan Corporation, after an unavailing motion for a new trial, has duly appealed to this court.

Home Owners' Loan Corporation, as appellant herein, contends that the trial court erred in not awarding to it the entire fund paid into court by plaintiff; also that the court erred in making an award to the Bleedorns jointly after Elizabeth Bleedorn failed to plead and appear. Appellant argues that, it being admitted that the Bleedorns owned the property as tenants by the entirety, neither of the Bleedorns could alienate any interest in it without the other joining. Appellant further contends that the court erred in awarding to John T. Sluggett, Jr., the sum of $ 150 out of the fund, and argues that Sluggett's contract shows on its face that at best he was only entitled to one-third of any amount that Edward E. Bleedorn individually might recover from the entire fund; and that Sluggett's contract could not apply to any award made in favor of Edward E. and Elizabeth Bleedorn jointly.

From the admissions in the pleadings and the evidence at the trial, it appears that Edward E. and Elizabeth Bleedorn owned the property in question as tenants by the entirety. They secured a loan from Home Owners' Loan Corporation in the sum of $ 2124.20, for which they gave their note to Home Owners' Loan Corporation secured by a deed of trust executed by the Bleedorns on the property mentioned.

Under Clause 4 of the deed of trust, the Home Owners' Loan Corporation caused insurance to be issued upon the property in a sum which was shown to be in excess of the amount of the loss by fire which later occurred. It is admitted that there was a loss by fire which occurred on December 13, 1936; and that all the parties agreed that the amount to be paid for the damage was $ 750. The evidence shows that the premiums for the insurance had been paid by the Home Owners' Loan Corporation and had been charged against the account of defendants Edward E. and Elizabeth Bleedorn.

Defendant Edward Bleedorn testified that the damage caused by the fire was repaired by him and a contractor whom he had employed at his own cost and expense, and that the property was restored to a better condition than it had been before the fire; that after the property had been so repaired and restored, the Home Owners' Loan Corporation foreclosed on the deed of trust and purchased the property at the foreclosure sale. Bleedorn further testified that, prior to the time the $ 2124.20 was borrowed by him and his wife from the Home Owners' Loan Corporation, the property had been insured by another insurance company, and that said insurance was still in force and effect at the time the loan was made; that it was understood by the Home Owners' Loan...