Walton v. Phœnix Ins. Co.

• Decision Date: 05 December 1911
• Citation: 162 Mo. App. 316,141 S.W. 1138
• Parties: WALTON v. PHOENIX INS. CO.
• Court: Missouri Court of Appeals

141 S.W. 1138

162 Mo. A. 316

WALTON v. PHOENIX INS. CO.

St. Louis Court of Appeals. Missouri.

December 5, 1911.

1. INSURANCE (§ 323) — FORFEITURE OF FIRE INSURANCE POLICY — "OCCUPANCY."

The occupancy of a dwelling house within a fire policy, stipulating that it shall be void if the building becomes vacant or unoccupied and remains so for 10 days, means that some person is living in it, and, if for 10 days no person is living in it, the house is unoccupied, and the policy is forfeited, but one may occupy premises which are not places of abode, and a house occupied by a caretaker or watchman not making the house his domicile is occupied.

2. TRIAL (§ 142) — EVIDENCE — QUESTION FOR JURY.

The jury may draw every reasonable inference which the evidence suggests.

3. INSURANCE (§ 665) — FORFEITURE OF FIRE INSURANCE POLICY — UNOCCUPIED PREMISES — EVIDENCE.

Evidence held to support a finding that a dwelling house was not unoccupied for 10 days within a fire policy, stipulating that it should be void on the building becoming unoccupied, and so remaining for 10 days.

4. INSURANCE (§ 146) — CONSTRUCTION OF FIRE INSURANCE POLICY.

The courts do not enlarge terms of insurance policies in an effort to defeat them, but, in the construction of doubtful terms, the construction most favorable to insured must be adopted.

5. INSURANCE (§ 646) — FORFEITURE OF FIRE INSURANCE POLICY — BURDEN OF PROOF.

A fire insurance company relying on the forfeiture of a policy on the ground that the dwelling insured has been unoccupied for 10 days in violation of the policy has the burden of establishing the facts.

6. APPEAL AND ERROR (§ 1005) — VERDICT — CONCLUSIVENESS.

A verdict on conflicting evidence rendered on proper instructions, and approved by the trial court, is conclusive on appeal.

7. INSURANCE (§ 328) — FORFEITURE OF FIRE INSURANCE POLICY — CHANGE OF TITLE.

A mortgagee, after condition broken, may enter and account to the mortgagor for the rental value of the premises, and such possession is not inconsistent with his position as mortgagee, nor is he the absolute owner within the clause of a fire policy issued to the mortgagor, avoiding the policy on a transfer of title to the property, and this title does not become legal by the mere execution by the mortgagor of a deed delivered to a third person in escrow for delivery to the mortgagee on the performance of specified conditions, and, until delivery, the policy is valid.

8. TRIAL (§ 253) — INSTRUCTIONS — IGNORING ISSUES.

A requested instruction which ignores a fact supported by ample evidence is properly refused.

9. INSURANCE (§ 624) — FIRE INSURANCE — ACTIONS — PARTIES.

A mortgagee in possession after condition broken may sue on a fire policy issued to the mortgagor, stipulating that any loss shall be payable to the mortgagee as his interest may appear, and the mere fact that the mortgagor has executed a deed of the premises to the mortgagee, and that the deed has been deposited with a third person in escrow for delivery to the mortgagee on the performance of specified conditions, which have not been performed, does not defeat the right of the mortgagee to sue.

10. INSURANCE (§ 624) — FIRE INSURANCE — ACTION — ESTOPPEL TO DENY RIGHT OF MORTGAGEE TO SUE.

Where an agent of a fire insurance company issuing a policy stipulating for the payment of a loss to a mortgagee through a bank of which the agent was cashier advised that the policy could not be assigned by insured to the mortgagee, the company was estopped to claim that the mortgagee could not sue on the policy without an assignment, provided the company knew that the agent acted for the bank as well as for insured and the mortgagee in the transaction.

Appeal from Circuit Court, St. Francois County; Chas. A. Killian, Judge.

Action by Walter W. Walton against the Phœnix Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Fyke & Snider and M. R. Smith, for appellant. Marbury & Hensley, for respondent.

REYNOLDS, P. J.

Plaintiff Walton, then the owner of a house and lot in Frankclay, St. Francois county, sold and conveyed it to one Wheeling, and for all or part of the purchase money took back a deed of trust on the same property, the deed being evidenced by thirty-three notes executed by Wheeling. Walton desired to raise $500 on these notes and submitted the proposed loan to the Irondale Bank, of which one Adams was cashier. Adams was also, at that time and place, agent of the Phœnix Insurance Company, the defendant and appellant here. When Walton applied for the loan Adams, after consultation with the president of the bank, agreed to make it with the deed of trust and notes as collateral security, provided insurance was taken out on the house. To this Walton agreed, whereupon defendant, through this agent Adams, issued its insurance policy by which it insured Wheeling for the term of three years against loss or damage by fire, to an amount not exceeding $1000 on the frame building situated on the lot referred to, the policy subject to all the conditions therein contained. It was written in this policy, "loss, if any, hereunder is payable to W. W. Walton through Irondale Bank as mortgage interest may appear." Adams stated in explanation of this, that by making the loss payable through his bank, if that occurred the bank would be able to protect itself by having the funds in its own hands.

The conditions in the policy involved were those of ownership of the property in Wheeling, and that the policy 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." This policy seems to have been signed by Adams, as agent for the company defendant. Thereupon the Irondale Bank made the loan of $500, Walton putting up the deed of trust and notes as collateral and executing the ordinary bank collateral note, and apparently retaining the policy until after the fire, when he sent it in to the bank or to Adams, as agent of the defendant company. It appears that afterwards Wheeling, having paid only about $20 on the debt and having told Walton that he could not pay any more, offered to deed back the property to Walton if the latter would surrender to him his notes which were secured by the deed of trust. This was agreed to, the agreement further providing that all moneys arising from the sale of the house, over and above $804.60, the balance owed by Wheeling on the notes, should be paid over by Walton to Wheeling, but that if on a sale of the property Walton was unable to obtain more than the amount of the debt, nothing was coming to Wheeling. Thereupon Wheeling and his wife executed a general warranty deed for the property, conveying it to Walton. This deed, by agreement, was not delivered to Walton but was left in the hands of a Mr. Clay in escrow, to be delivered to Walton when he had taken up the notes held as collateral by the bank and returned them to Wheeling. After the execution of this agreement and of this warranty deed and the placing of the latter in the hands of Mr. Clay in escrow, Wheeling and Walton went into the Irondale Bank and informed Adams of it, talked over the effect of it on the title to the property and asked Adams about the necessity of an assignment of the policy from Wheeling to Walton. Wheeling said he would assign the policy then or later, but saying he was in a hurry left the bank. Walton remained and took up the matter of the assignment with Adams. Adams told Walton that "on account of this deed not being in his own hands that he couldn't claim to be the absolute owner of that property, consequently he couldn't make a transfer of the policy, until he traded for the property." Adams testifying, said he knew from Mr. Clay that he (Clay) had the deed in escrow and that Clay was holding it on the understanding that when Walton raised these notes from the Irondale Bank or delivered the notes to Clay or delivered Clay a receipt from Wheeling for the notes, he would deliver the deed to Walton and the latter would become the absolute owner of the property. It was on this state of facts that Adams said that no assignment of the policy from Wheeling to Walton should be and none was made, he (Adams) being of the opinion that until the delivery of this deed to Walton, he was not the owner of the property, and so he told Walton. Adams also testified that the defendant Insurance Company was aware of the fact that he was also the cashier of the Irondale Bank and that when he (Adams) issued the policy on the property, he had, in due course, notified defendant of its number and series and of the mortgage clause. After Walton and Wheeling had made their agreement and the deed had been lodged in escrow, Wheeling turned over the possession of the house to Walton, agreeing to pay him rent in lieu of the unearned portion of the premium on the insurance policy. Wheeling never paid any rent and after occupying the premises for a short time moved out and it was thereafter occupied by different tenants of Walton until about the 27th of September, 1907, on which date the tenant then occupying it moved out. Walton thereupon rented it to a man named Bass. The original arrangement between Bass and Walton was that the former was to take possession about the 15th of October, that being the date upon which the lease on the house in which he was then residing expired. Walton afterwards told Bass that the property was insured and that he would like to have him move in right away; that he might move in a little of his furniture; that he need not move the best of it, but to move something in that was not very valuable, so as to protect his insurance. Bass agreed to this, but when he started to move in part of his furniture he and his wife changed their minds and concluded they would move altogether. Accordingly on Monday the 7th of October, they moved three loads of furniture into the house. Before...