170 S.W. 682 (Mo.App. 1914), Waddle v. Commonwealth Insurance Company

Citation:170 S.W. 682, 184 Mo.App. 571
Opinion Judge:ROBERTSON, P. J.
Party Name:MRS. E. A. WADDLE, Respondent, v. COMMONWEALTH INSURANCE COMPANY, Appellant
Attorney:Williams & Galt for appellant. Troy Pace, Hamlin & Seawell for respondent.
Judge Panel:ROBERTSON, P. J. Farrington and Sturgis, JJ., concur. Farrington and Sturgis, JJ., concur.
Case Date:November 05, 1914
Court:Court of Appeals of Missouri
 
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Page 682

170 S.W. 682 (Mo.App. 1914)

184 Mo.App. 571

MRS. E. A. WADDLE, Respondent,

v.

COMMONWEALTH INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, Springfield

November 5, 1914

Appeal from Greene County Circuit Court.--Hon. Guy D. Kirby, Judge.

AFFIRMED (conditionally).

Williams & Galt for appellant.

(1) The Statute, R. S. 1909, sec. 2022, makes perjury a distinct ground of new trial. State ex rel. v. Edwards, 11 Mo.App. 154. (2) Perjury is ground for a new trial independently of the question of surprise. Ridge v. Johnson, 129 Mo.App. 541; Byrd v. Vanderburgh, 168 Mo.App. 112; Berryhill v. Tribe of Ben Hur, 151 Mo.App. 415. (3) It was pertinent to the issues of the case to show that plaintiff's witness, Hawk, had been intimately associated with Walter Kendrick previous to the time of the trial; that he and Kendrick were on a note at the bank, and that the house which they jointly constructed was destroyed by fire before it was occupied and that it was insured. A conspiracy having been alleged, and a system being apparent from the similarity of the fires. 1 Wigmore on Evidence, secs. 300, 304, 340, 347, and cases cited. (4) Call the court's attention to a case which defines the meaning of the word "occupy," as used in insurance policies. Van Derhoof v. Agricultural Ins. Co., 12 N. Y. St. 341-343.

Troy Pace, Hamlin & Seawell for respondent.

(1) The question of alleged perjury, when made a ground in the motion for a new trial is largely a matter within the discretion of the trial court, and unless the discretion was abused the appellate court will not interfere. Dean v. Railroad, 229 Mo. 452; Byrd v. Vanderburgh, 168 Mo.App. 119; Scott v. Railroad, 168 Mo.App. 531. (2) The contention that evidence of the fact that witness Hawk had been unfortunate in having his property destroyed by fire and the circumstances of the fire, and his connection therewith, with one Kendrick, was admissible, is unworthy of notice. Even if appellant had alleged that witness Hawk was in a conspiracy, still, evidence of specific acts of incendiarism or fraud prior to the alleged conspiracy on his part would certainly not be admissible as against respondent. (3) Instruction number 3 properly defines the term "occupied as a residence," and if number 7, at the instance of appellant, conflicts therewith, then the error is favorable to it, and it is estopped to complain. Walton...

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