Wolf v. Hartford Fire Ins. Co.
| Citation | 269 S.W. 701 |
| Decision Date | 02 March 1925 |
| Docket Number | No. 15275.,15275. |
| Parties | WOLF et al. v. HARTFORD FIRE INS. CO. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.
Action by Jerry Wolf and another, partners doing business as J. & A. Wolf, against the Hartford Fire Insurance Company. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.
Transferred from Supreme Court in 263 S. W. 846.
Sebree, Jost & Sebree, of Kansas City, for appellants.
C. G. Myers, of Chicago, Ill., and Amos Townsend, of Kansas City, for respondent.
This is an action on the contract of fire insurance, the unusual and peculiar nature of which, as well as the circumstances surrounding the controversy, will be hereinafter more fully set forth.
Owing to these matters, the trial court, on motion of defendant and over the objections of plaintiffs, regarded the case as having been converted into equity by the defenses raised, and tried it as an equity case, denying plaintiffs' right to a jury.
After hearing the case, the chancellor, by his refusal of declaration E (the only one of. plaintiffs' five declarations that was refused), held that plaintiffs could not recover, and rendered judgment for defendant. Plaintiffs thereupon took an appeal to the Supreme Court on the theory that the refusal of a jury was erroneous and an invasion of plaintiffs' right thereto under the Constitution, and that thereby a constitutional question arose which gave the Supreme Court jurisdiction of the appeal. But that court held it was not a question of construction, but merely one of application, of the Constitution, and transferred the case to our court. See Wolf v. Hartford Fire Ins. Co. (Mo. Sup.) 263 S. W. 846.
The contract of insurance on which suit is brought is one of two concurrently issued policies, each having the same number, No. 35821, and the same date, December 5, 1914, and with two riders attached, so that each policy effected "blanket" insurance, not only to the Kansas City Live Stock Exchange to whom it was issued, but also to all owners of live stock in its stockyards, with the same force and effect as if such owners' names were written in the contract. The two concurrently issued policies are identical in terms, except that one of them (the one sued on herein) was countersigned by defendant's agent at Topeka, Kan., and the other was countersigned by the defendant's agent at Kansas City, Mo., and the property, though described in each by the same general and comprehensive terms, is, in the former, designated as being in Kansas, and, in the latter, as being in Missouri.
The stockyards in question occupy one large tract of ground in Kansas City, Mo., and Kansas City, Kan. (the two municipalities being separated merely by the imaginary boundary line between the two states), and the stockyards being partly in Missouri and partly in Kansas. There is no question but that plaintiffs, at the time of the fire, had cattle in the pens of the stockyards which were in charge and control of the said livestock exchange, and therefore plaintiffs came within the class covered and intended to be protected by the insurance.
On October 16, 1917, a fire broke out in the stockyards and burned over an area, one-fifth of which was in Missouri and the remainder was in Kansas. Plaintiffs' cattle were in pens which were in Kansas, but, according to plaintiffs' petition and evidence, only 633 head were within the burned area and were lost through the fire; the other 751 head owned by plaintiffs were not within the burned area and hence were not lost or destroyed, but were afterwards sold by plaintiffs, and they are not involved herein. A provision in the insurance contract made it cover any loss arising through the mixing of two or more owners' stock in removing them to a place of safety in the event of fire, and of the 633 head lost through the fire 125 head were not consumed but were lost by being commingled with other cattle, and which were sold by defendant as hereinafter more particularly explained.
A clause in said contract of insurance sued on provided that, if there was any specified insurance on live stock, then the blanket insurance should apply "only after said specific insurance is exhausted."
The petition, after pleading the situation and relationship of the different organizations at the stockyards, the issuance of the insurance contract between defendant and the said live stock exchange for the benefit of itself and those who owned cattle in the stockyards, alleged that in the fire of October 16, 1917, they lost 633 head of cattle of the reasonable value of $34,105.
Plaintiffs further pleaded that in addition to the insurance afforded by defendant in the insurance contract sued on, they had other specific insurance on said cattle, in various named companies, but which had been entirely exhausted in collecting therefrom the aggregate sum of $29,584.06, and that defendant was notified of that fact, whereby there remained due plaintiffs the sum of $4,519.64 ($3,398.34 according to the evidence), for which judgment was prayed, together with damages and attorneys' fees for vexatious delay.
The answer admitted the execution of the insurance contract sued on, but set up that in fourteen policies issued by eight named insurance companies the plaintiffs had $35,000 specific insurance, that said policies were made, issued, and delivered in Missouri, and the companies issuing them were liable for the full amount of each policy, and, if the cattle lost were of the value of $34,105, plaintiffs neglected to collect the full amount of the loss, whereby the specific insurance has not been exhausted; the defendant not being liable for anything but the excess loss above the specific insurance.
The answer further set up that in the insurance contract of December 5, 1914 (the one sued on), it was provided that settlement for loss could be made with the president of the Kansas City Live Stock Exchange for the benefit of the owners of stock destroyed, and that growing out of the fire over 560 loss claims arose, and the vast work of examining and passing on them in behalf of the claimants was done by said president and a committee of his choosing, and plaintiffs presented to said committee the question of whether defendant was liable to them or not on account of the specific insurance; that said committee settled with defendant for $1,733,779.99, which defendant paid to Kansas City Live Stock Exchange in full settlement of all loss; that plaintiffs knew the committee were passing on the question of liability of each claimant as well as the amount of such loss, yet made no objection thereto, and did not serve upon defendant any proof of loss until after said payment to the exchange was made, whereby plaintiffs are estopped from denying or disturbing said settlement, but are bound thereby and defendant is discharged; that in order to determine whether plaintiffs are entitled to participate in the fund so paid by defendant to said exchange, and for a complete determination of the subject-matter of the action as well as the prevention of a multiplicity of suits, it was necessary that the Kansas City Live Stock Exchange and its president be made parties, and that an accounting be had of the funds so paid, and, in such accounting, it should be determined whether or not plaintiffs have participated, or, if they have not, whether they should participate, in the distribution of said funds by said Kansas City Live Stock Exchange.
The answer further set up that the Kansas City Live Stock Exchange was never requested, and had never refused, to bring suit on plaintiffs' claims, and said exchange alone is entitled to sue, and plaintiffs have no legal capacity to do so.
The answer further set up, as a defense, a clause in the contract of insurance providing that if insured had or procured any additional insurance, whether valid or not, the insurance under the contract would be void.
The answer further set up that plaintiffs alone have the knowledge why a less sum than the loss sustained was accepted from the eight companies issuing said specific insurance ; that plaintiffs did not accept said $29,584.06 as full payment of said policies, and strict proof thereof was called for, and an accounting was asked to be had of every settlement with each company; and that said eight companies are necessary parties to this action. Wherefore it was prayed that the payment of $1,733,779.99 be decreed a full satisfaction and that plaintiffs be estopped and restrained from denying or disturbing said settlement; that a full accounting be had of the disbursement of the funds and that it then be determined whether plaintiffs participated, or are entitled to participate, therein; and that defendant be discharged from further liability, and that a full accounting be had of the moneys received by plaintiffs from each of the eight insurance companies aforesaid.
The reply set up that, after the fire, and while those of plaintiffs' cattle that had survived the fire were in the yards and intermingled with cattle of other persons, defendant caused plaintiffs to deliver such intermingled cattle to defendant on the representation that it was necessary for all the surviving cattle to be gathered together without regard to ownership and sold as the property of defendant to prevent further loss and liability; that defendant took charge of said cattle and sold them and kept the proceeds and has never refunded them to plaintiffs, and defendant is therefore estopped to deny it has legal contractual relations with, and liability to, plaintiffs.
The reply denied that the Kansas City Live Stock Exchange was a necessary party, and alleged there was no foundation for an accounting on the part of said exchange, because defendant never paid any money to it for plaintiffs' account, but denied liability to plaintiffs, notwithstanding it received and sold a...
To continue reading
Request your trial