914 S.W.2d 35 (Mo.App. E.D. 1996), 67880, Osborn v. Home Ins. Co.

Docket Nº67880.
Citation914 S.W.2d 35
Party NameCharles OSBORN, Respondent/Cross-Appellant, v. The HOME INSURANCE COMPANY, Respondent, and Charlie's Warehouse Foods, Inc., John Gowan and Anita Gowan d/b/a Gowan's Foodliner, Inc., individually, and John Gowan and Tom Turner as statutory trustees of Gowan's Foodliner, Inc., Appellants/Cross-Respondents.
Case DateJanuary 02, 1996
CourtCourt of Appeals of Missouri

Page 35

914 S.W.2d 35 (Mo.App. E.D. 1996)

Charles OSBORN, Respondent/Cross-Appellant,

v.

The HOME INSURANCE COMPANY, Respondent,

and

Charlie's Warehouse Foods, Inc., John Gowan and Anita Gowan

d/b/a Gowan's Foodliner, Inc., individually, and John Gowan

and Tom Turner as statutory trustees of Gowan's Foodliner,

Inc., Appellants/Cross-Respondents.

No. 67880.

Court of Appeals of Missouri, Eastern District, Third Division.

January 2, 1996

Page 36

Appeal from the Circuit Court of Cape Girardeau County; John W. Grimm, Judge.

Kent M. Bevan, Dysart, Taylor, Penner, Lay & Lawandowsky, Kansas City, Keith D. Sorrell, Spain, Merrell & Miller, Poplar Bluff, for appellant.

C.H. Parsons, Jr., Parsons, Wilson & Satterfield, Dexter, for respondent.

GARY M. GAERTNER, Judge.

Appellants/cross-respondents, John Gowan and Anita Gowan d/b/a Gowan's Foodliner, Inc., individually, and John Gowan and Tom Turner as statutory trustees of Gowan's Foodliner, Inc., appeal from the judgment of the Cape Girardeau County Circuit Court apportioning $275,000 in insurance proceeds. Respondent/cross-appellant, Charles Osborn, also appeals. We affirm.

Charles Osborn ("landlord") was the fee simple owner of a parcel of land in Butler County, Missouri, and the owner of a commercial grocery store, Charlie's Warehouse Foods, Inc., located there. On September 3, 1990, John and Anita Gowan, doing business as Gowan's Foodliner, Inc. (collectively "tenant"), purchased from landlord the inventory, equipment, business name, and goodwill of Charlie's Warehouse Foods, as well as a covenant not to compete. Also on September 3, 1990, landlord entered into a written lease agreement with tenant for the purpose of leasing the grocery store's building to tenant.

The lease was for seven years, with an option to renew all the terms for an additional five-year term. Rent was $3,200 per month for the seven-year initial term and the five-year option. Section XIII of the lease, "DAMAGE TO PREMISES BY FIRE, CASUALTY OR BY TAKING FOR PUBLIC USE," provided that in case the building was "taken for any street or other public use," or "destroyed or substantially damaged by fire or casualty, or condemned by the action of a governmental body or other public authority after the execution hereof and before the expiration of the said term," either landlord or tenant could elect to terminate the lease. Section XIV of the lease, "INSURANCE," provided in pertinent part:

The Tenant shall insure, at his sole expense, the building on the demised premises against the risk of fire in the minimum amount of Three Hundred Thousand Dollars ($300,000.00). The Landlord shall appear as sole loss payee....

Tenant purchased an insurance policy...

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