Hoover v. Mercantile Town Mut. Ins. Co.

• Decision Date: 18 March 1902
• Citation: 69 S.W. 42,93 Mo. App. 111
• Court: Missouri Court of Appeals
• Parties: HOOVER et al. v. MERCANTILE TOWN MUT. INS. CO.

69 S.W. 42

93 Mo. A. 111

HOOVER et al. v. MERCANTILE TOWN MUT. INS. CO.

Court of Appeals at St. Louis, Missouri.

March 18, 1902.

INSURANCE — VACANT BUILDING — WARRANTIES IN POLICY — MUTUAL FIRE INSURANCE — INSTRUCTIONS.

1. A policy of insurance provided that it would be void if the building described should "be or become vacant or unoccupied and so remain for 10 days" unless by agreement indorsed on or added to the policy. The building became vacant for a longer period, after which it was occupied and so remained until the fire. Held, that the policy had been avoided.

2. Under a policy such as is above described the burden of proof to show the unoccupied condition of the building is upon the defendant.

3. The Missouri act of 1897 (Rev. St. 1899, §§ 7973, 7974) "construing warranties" in certain insurance policies does not alter the effect of a stipulation in a town mutual fire policy by which it becomes void if a building is allowed to be vacant or unoccupied for a specified period of time. The word "condition" in the second section in said act (Rev. St. 1899, § 7974) refers to facts existing when the policy is made.

4. Town mutual fire and other insurance companies named in section 8084, Rev. St. 1899, are exempt from the provisions of chapter 89, Rev. St. 1889 (now article 6, c. 119, Rev. St. 1899).

5. Contracts of insurance are to be construed like other contracts, and their terms accepted in their plain and ordinary sense.

6. Slight circumstances have been held to show an intent to waive forfeiture, after knowledge thereof.

7. "Occupation" of a dwelling house means living in it. The use for which premises are intended should be considered in determining what is meant by the word "unoccupied" as contained in a policy.

8. Instructions should not be conflicting.

9. The court holds it unnecessary to decide whether section 8084, Rev. St. 1899, concerning town mutual insurance companies, applies to policies issued to members of those companies prior to the enactment of that section.

(Syllabus by the Judge.)

Appeal from circuit court, Oregon county.

Action by C. F. Hoover and others against the Mercantile Town Mutual Insurance Company. Judgment for plaintiffs, and defendant appeals. Reversed.

Fyke, Yates, Fyke & Snider, for appellant. Harris & Norman, for respondents.

BARCLAY, J.

This is an action upon a fire policy issued by the defendant, a town mutual company, to J. S. Hoover, October 19, 1897, insuring him against loss by fire to an amount not exceeding $600 on "his two-story frame building, with shingle roof," etc., "occupied as a private dwelling," situated on the west half of block 5 in Thomsonville, Missouri. Plaintiffs are the heirs at law of the insured. He died shortly before the fire which took place May 22, 1899. The pleadings need not be set forth particularly.

The most important phase of the defense is found in a stipulation of the policy to the effect that "this entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days." The defendant is incorporated under the statute regulating the formation of town mutual fire and other insurance companies. Laws Mo. 1895, p. 200. By provisions of the act of 1895 such companies were exempt from the provisions of the insurance laws contained in chapter 89, Rev. St. 1889.

It appears from the pleadings that the plaintiffs claimed in the trial court that the policy in question, having been issued in October, 1897, after the act approved March 26, 1897, took effect, is to be construed in subordination to that act. Inasmuch as we have concluded that said legislation of 1897 does not, by its terms, avoid the defense set up in this cause, it will not be necessary to determine whether policies of town mutual companies are, for any reason, immune from the provisions of said act of 1897. The provisions of the act of 1897 supposed to have a bearing on the result of the case in hand are as follows: "Section 1. That the warranty of any fact or condition hereafter made by any person in his or her application for insurance against loss by fire, tornado or cyclone, which application, or any part thereof, shall thereafter be made a part of a policy of insurance, by being attached thereto, or by being referred to therein, or by being incorporated in such policy, shall, if not material to the risk insured against, be deemed, held and construed as representations only, in any suit brought at law or in equity in any of the courts of this state, upon such policy to enforce payment thereof, on account of loss of or damage to any property insured by such policy. "Sec. 2. That the warranty of any fact or condition hereafter incorporated in or made a part of any fire, tornado or cyclone policy of insurance, purporting to be made or assented to by the assured which shall not materially affect the risk insured against, shall be deemed, taken and construed as representations only in all suits at law or in equity brought upon such policy in any of the courts of this state." Laws Mo. 1897, p. 130. On the circuit the cause was tried with the aid of a jury. A large amount of evidence was submitted on behalf of the defendant, tending to show that the insured building was occupied in September, 1898, by a tenant named Mr. Miller. He testified that he moved out of it in the last week of February, 1899. About the first part of May following after the death of the insured, one of his sons and the widow of the insured moved into the building. In the meanwhile it was not merely unoccupied. There is much evidence that the keys were lost. The doors were unfastened the greater part of the time, and often stood open. The children about town made a playground of the premises. Occasionally domestic animals would wander into the building; many panes of glass were broken; some of the upper windows became so ruinous and exposed to the elements that when the family returned it was deemed best to cover the window openings with boards nailed to the outer walls. Nobody lived in the house in March and April, 1899. Even the plaintiffs who testified made a number of admissions which, at least in a negative way, corroborated the defendant's evidence aforesaid. The burden of proof, however, to establish the breach of the condition relied upon by the defendant was upon the latter. Viewing the evidence for plaintiffs as a whole, it cannot be fairly held to amount to an admission of defendant's contention on the point referred to; but in every aspect of the evidence it affords solid foundation for a finding that the building had become unoccupied and so remained for more than 10 days, within the meaning of the policy.

Before the fire (May 22, 1899) Mrs. Hoover, widow of the deceased, and one of her sons returned to the premises and occupied them, so that, when the loss occurred, the building was neither vacant nor unoccupied. But defendant insists that, as the policy was already void at that time for condition broken, there can be no recovery upon it. At the close of the testimony the court gave the following instructions at the instance of plaintiffs: "(1) The court instructs the jury that if they believe from the evidence that defendant issued its policy of insurance to J. S. Hoover, dated October 19, 1897, and that J. S. Hoover was the owner of said buildings at the time of insurance and loss, and that J. S. Hoover died before the loss by fire, and that said property was destroyed by fire on or about 22d day of May, 1899, then the plaintiffs are entitled to recover, and you should assess the damages at the actual value of the property at the time of the loss. (2) The court instructs the jury that, to constitute occupancy of a house such as was insured, some one must live in and occupy the same as such houses are usually lived in and occupied. (3) The court instructs the jury, if they find from the evidence that plaintiff, within a reasonable time after the fire, notified the agent of defendant nearest the place of loss, then defendants had proper notice of loss. (4) If you find for plaintiff you will assess the damages at cash value of the building at the time of the fire as shown by the evidence."...