Hilburn v. PhŒnix Ins. Co.

• Decision Date: 10 January 1910
• Court: Missouri Court of Appeals
• Parties: HILBURN v. PHŒNIX INS. CO.

124 S.W. 63

140 Mo. App. 355

HILBURN v. PHŒNIX INS. CO.

Springfield Court of Appeals. Missouri.

January 10, 1910.

1. INSURANCE (§ 634) — ACTIONS — PETITION — ALLEGATIONS — SELF-SERVING ALLEGATIONS.

Where in a suit on a fire policy the petition alleged that insured submitted to an examination under oath by defendant's agents, and offered to arbitrate the amount of loss, both of which the policy required, the allegations were not self-serving for the purpose of prejudicing defendant, but were proper to show compliance with the conditions of the policy.

2. PLEADING (§ 426) — DEFECTS — PETITION — WAIVER — WAIVER BY ANSWERING.

By answering the petition after its motion to strike out parts thereof as self-serving allegations had been overruled, and going to trial, defendant waived any error in denying the motion to strike.

3. APPEAL AND ERROR (§ 1042) — HARMLESS ERROR — REFUSAL TO STRIKE — CURE BY VERDICT.

Any error in refusing to strike as self-serving allegations averments of the petition in an action on a fire policy that plaintiff submitted to an examination under oath by the company, and had offered to arbitrate the amount of the loss, would not be material after verdict for plaintiff.

4. EVIDENCE (§ 213) — ADMISSION — OFFER OF COMPROMISE.

In order to make an offer of compromise inadmissible, it must have been expressly made without prejudice or during negotiations for a settlement to bring about which the offer was made, and, where there was no proof of negotiations for compromise, plaintiff could testify that defendant made her an offer of settlement, but they did not settle; such testimony being merely the recital of a fact.

5. TRIAL (§ 96) — OBJECTIONS — ADMISSION OF EVIDENCE — EVIDENCE ADMISSIBLE IN PART.

A motion to strike the whole of an answer of a witness which was in part admissible was properly denied.

6. INSURANCE (§ 665) — ACTIONS — SUFFICIENCY OF EVIDENCE.

In an action on a fire policy, evidence held not to show that insured kept gasoline within the building containing the insured property, in violation of a warranty against doing so.

7. INSURANCE (§ 645) — ACTIONS — FAILURE TO PROVE LOSS — PLEADING — NECESSITY.

Failure to make proof of loss according to the terms of a fire policy should have been specially pleaded in the answer to be available as a defense to an action on the policy, so that an allegation in the petition of compliance therewith was not put in issue by a general denial.

8. INSURANCE (§ 559) — FIRE INSURANCE — PROOF OF LOSS — WAIVER.

An insurance company waived proof of loss as required by the policy by denying liability thereon and refusing to pay.

9. TRIAL (§ 143) — JURY QUESTION — WEIGHT OF EVIDENCE.

The jury are the sole judges of the weight and the credibility of conflicting testimony.

10. APPEAL AND ERROR (§ 1002) — FINDINGS — CONCLUSIVENESS — CONFLICTING EVIDENCE.

The findings of the jury on conflicting evidence are conclusive on appeal.

11. INSURANCE (§ 378) — ESTOPPEL — KNOWLEDGE OF AGENTS — OWNERSHIP OF BUILDING.

Notice to an agent acquired during his agency of facts relating to a transaction within its scope is notice to the principal, and, where an agent issued an insurance policy with the understanding that insured did not own the building in which the property was, but merely rented it, the company cannot claim that insured made any misrepresentation or warranty as to its ownership by accepting the policy which stipulated that insured was the sole owner of the building.

12. INSURANCE (§ 500) — FIRE INSURANCE — VALUED POLICY.

Where the value of personal property insured is fixed by the policy, its value cannot thereafter be questioned, Rev. St. 1899, § 7969,¹ prohibiting defendant in suits on fire insurance policies from denying that the property was worth when the policy was issued the full amount insured therein, and making the amount insured the measure of damages in case of total loss, less depreciation in value since the policy was issued.

13. INSURANCE (§ 669) — FIRE INSURANCE — ACTIONS — INSTRUCTIONS — VALUE OF PROPERTY — NECESSITY OF STATING.

In an action on a valued fire policy, it was not necessary to state the value of the insured goods in the instructions, where there was no evidence that it had depreciated since the policy was issued.

Appeal from Circuit Court, Barton County; J. B. McGilvray, Special Judge.

Action by Susan Hilburn against the Phœnix Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 129 Mo. App. 670, 108 S. W. 576.

Susan Hilburn, the respondent, on the 14th day of June, 1906, was living at Mindenmines, Barton county, Mo. One H. C. Chancellor was the local agent of the Phœnix Insurance Company at that place. The appellant through its said agent issued the respondent a policy of insurance against fire for a period of three years from that date, whereby, in consideration of the payment by respondent of a premium and policy fee, respondent was insured against fire in an amount not to exceed $500 upon household and other goods while contained in a building specified in the policy in the town of Mindenmines.

The petition alleges the taking out of the policy, the payment of the premium, the amount of the policy — $500 — a description of the property insured, and that the building in which the articles insured were kept was a shingle roof frame building; that the articles insured were of the value of $800, and that the insurance was to run for a period of three years from June, 1906; further, that at the time the policy was issued she was the sole and unconditional owner of the property insured; that in August, 1906, after the policy was issued and while it was in force, the property was totally destroyed by fire, and that respondent's damage and loss amounted to the sum of $800, the value of the goods on that date; that within 6 days after the loss by fire she gave the defendant notice in writing of the loss, and within 30 days from the date of the fire rendered a particular and specific account of such loss, which was signed and sworn to by her, stating that there was no other insurance on the property and gave the written portion of such policy thereon; that she also gave thereon the actual cash value of such property, specifically stated, and her interest therein, and that it was not incumbered, and when and how the fire originated. Respondent further alleged that, at the request of appellant, she submitted to an examination under oath by agents and representatives of the appellant, and subscribed to such examination when reduced to writing, and that she exhibited to the agents of appellant all that remained of the property that was covered by the policy for their examination; that she and the appellant failed to agree on the value of and damage to the property covered by said policy, and that she afterwards offered to submit the amount of loss or damage to competent arbitrators, as provided for in said policy, but that appellant refused; that she had performed fully all the conditions of the policy in due time after the fire. She asked judgment for $500, with interest at 6 per cent. from the 19th day of September, 1906. A general demurrer was filed to this petition, which was by the court overruled.

Subsequently the defendant below filed a motion to strike out parts of the petition on the ground that the matter sought to be stricken out was irrelevant and frivolous, and was merely an effort to create prejudice against the defendant. The language sought to be stricken out is as follows: "Plaintiff further states that she has submitted at the request of the defendant to examination under oath by agents and representatives appointed by the defendant, and subscribed to such examination when reduced to writing and exhibited to the agents and representatives of the defendant all that remained of the property that was covered by this policy, damaged or not damaged, for their examination for this defendant. Plaintiff further states that she and the defendant failed to agree upon the amount of sound value and of damage to the property covered by said policy, and she afterwards offered to submit the amount of loss or damage to competent and impartial arbitrators, as provided for in said policy, but that the defendant has failed refused, and neglected to submit to such arbitration the amount of loss or damage to the property covered by said policy." This motion was by the court overruled.

The answer filed by the appellant pleaded seven separate defenses — after setting up a general denial — which are briefly stated as follows:

(1) That whereas the policy covered the goods "while situate on and confined to, premises actually owned and occupied by assured," she never owned the premises, but was tenant only.

(2) That plaintiff was not the sole owner of the goods; her husband having an interest therein.

(3) That in her oral application she had misrepresented as to previous fires, stating that she had had none, whereas she really had had three.

(4) That in her application she had grossly misrepresented as to the value of the goods she wanted insured.

(5) That the day before the fire she had purchased and taken home a gallon of gasoline, in violation of the policy; she having no gasoline stove.

(6) That in her alleged proof of loss she grossly misrepresented the value of the property destroyed, to mislead defendant.

(7) That in her previous examination under oath she falsely testified that among the articles lost were a steel range of the value of $65 and one organ of the value of $125, and many other articles, whereas they had been lost in her previous fire at Springfield.

Defendant tendered back the premium, with interest, and asked that the policy be canceled and for naught held. The plaintiff below filed a replication, being a specific denial of the new matter set up in the answer. Plaintiff obtained judgment in the trial court for $570 and costs, and the defendant...