Agee v. Empemployers' Liability Assur. Corporation

• Decision Date: 18 June 1923
• Docket Number: No. 14761.,14761.
• Citation: 213 Mo. App. 693,253 S.W. 46
• Parties: AGEE v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, LIMITED, OF LONDON, ENG.
• Court: Missouri Court of Appeals

253 S.W. 46

213 Mo. App. 693

AGEE v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, LIMITED, OF LONDON, ENG.

No. 14761.

Kansas City Court of Appeals. Missouri.

June 18, 1923.

Remittitur Filed June 19, 1923.

Action by Lee Agee against Employers' Liability Assurance Corporation, Limited, of London, Eng. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

Lathrop, Morrow, Fox & Moore, George J. Mersereau, and Manvel H. Davis, all of Kansas City, for appellant.

J. C. Rosenberger, of Kansas City, for respondent.

ARNOLD, J.

This is an action to recover for the loss of a platinum diamond bar pin, alleged to have occurred within the terms of a residence theft policy issued by defendant to plaintiff, which said policy contained an indorsement covering all loss by robbery of property of assured or any permanent member of his household.

On March 4, 1921, Mrs. Evelyn Agee, wife of the insured, was wearing a diamond platinum pin about two and one half inches in length having three large diamonds in the center, surrounded by some forty or fifty small diamonds. She was wearing the pin on a "georgette" lace front attached to her dress by means of safety pins. It was pinned to this lace front and locked. She had bought a waist on the Walnut street side of Kline's Cloak & Suit Company in Kansas City, Mo., and after having tried on the new waist she noticed the pin was securely attached to her waist front. She thereupon went to the cashier's desk to pay for the waist and while waiting for her package and change, she decided to go into the Main street side of the store to make some other purchases. The store in question occupies part of the entire block between Main and Walnut streets. An alley divides the store into two buildings, and in passing from one building to the other it is necessary to pass through swinging doors into a vestibule, some four or five" feet wide by five to six feet long, thence across the alley into a similar vestibule leading into the other building.

On the occasion in question, Mrs. Agee left the cashier's desk and started toward the vestibule, but before entering therein, a little girl ran into her skirts and made some remark about Mrs. Agee's black glasses. Mrs. Agee spoke to the child, then proceeded toward the other section of the store, and as she was passing through the vestibule she was jostled by several unknown persons coming from the opposite direction, who crowded against her. After she passed out of the vestibule, she noticed her clothing was out of order, her waist front torn loose from her dress and hanging, a piece torn therefrom, and her bar pin gone. At the time this discovery was made, the persons who had crowded against, and jostled her, had disappeared. She return at once to the cashier's desk and reported the incident, and also sought the nearest policeman and reported the matter to him. She called plaintiff by telephone and the two went at once to the local office of defendant and reported the loss. The agent of the defendant company reduced her statement to writing in condensed form and it was then signed by plaintiff.

On April 4th, a month after the occurrence, defendant wrote a letter to the assured informing him that the company's "investigation discloses that the loss of your wife's bar pin did not occu'r as the result of robbery as defined by provision No. 1 on the personal holdup indorsement attached to your policy. Apparently there was no forcible taking of property by violence inflicted upon the person of your wife, nor was she put in fear of such violence." Further, the letter informed the insured of the refusal of the company to assume any liability on account of said loss. This suit followed.

The petition alleges facts as above out' lined, placed the value of the pin at $1,500, and asked judgment therefor, together with $150 for statutory Vexatious delay and $500 attorney's fee. The answer and reply thereto were general denials.

The trial was to a jury resulting in a verdict in favor of plaintiff for $1,000 on the policy, $67.50 interest, $100 damages, and an attorney's fee of $250 and judgment therefor was accordingly entered. Motions for new trial and in arrest were unsuccessful, and defendant appeals.

The first question presented for our `consideration is the charge that the court erred in refusing defendant's instructions in the nature of demurrers, offered at the close of plaintiff's case and again at the close of all the evidences This assignment involves the construction of the "personal holdup indorsement" clause of the policy, which reads:

"In consideration of an additional premium of $19.00, it is agreed that $5,000.00 of the insurance under this policy is hereby extended * * * to cover for all loss by robbery of property of the assured or of any permanent member of the assured's household who does not pay board or rent, or of a relative of the assured permanently residing with him, * * * subject to all the general provisions of the policy as originally written and to the following special provisions:

"Special Provisions. 1. Robbery as used in this indorsement shall mean a felonious taking of property by violence inflicted on the person from whom the property is taken, or by putting such person in fear of violence."

This is the only special provision in this indorsement involved in this appeal. It is urged by defendant that the provision of the indorsement quoted above does not render defendant liable under the facts in evidence in this case. It is argued that the heading of the indorsement clearly defines the intent of the contract following thereunder. We cannot accept defendant's contention on this point as conclusive, nor are we warranted in accepting the heading of the indorsement as controlling. It must be conceded that the heading of the indorsement could have been other than the one employed. Reference to the special clause above quoted shows beyond question that, in order to bring the robbery within its terms, there must be a showing either of "a felonious and forcible taking of property by violence inflicted upon the person," or "by putting such person in fear of violence." Under the facts herein, we may eliminate the second of these disjunctive elements. There was no testimony tending to show that Mrs. Agee...