Badgett v. Hartford Fire Ins. Co.

• Decision Date: 26 June 1945
• Citation: Badgett v. Hartford Fire Ins. Co., 188 S.W.2d 761, 238 Mo.App. 797 (Mo. App. 1945)
• Parties: Rufus Badgett, Respondent, v. Hartford Fire Insurance Company, a Corporation, Appellant
• Court: Missouri Court of Appeals

188 S.W.2d 761

238 Mo.App. 797

Rufus Badgett, Respondent, v. Hartford Fire Insurance Company, a Corporation, Appellant

Court of Appeals of Missouri, Springfield District

June 26, 1945

Appeal from the Circuit Court of Ripley County; Hon. Randolph H Weber, Judge.

Reversed.

Phillips & Phillips and M. W. Henson for appellant.

Estoppels of which "Waiver" is one form are odious and will not be lightly invoked. Foster v. M. W. A., 138 S.W.2d 18 235 Mo.App. 386. "Waiver" is predicated on knowledge and where no knowledge is shown there can be no waiver. Haggerty v. St. Louis Relief Ass'n, 141 S.W.2d 174; Woodson v. John Hancock Ins. Co., 84 S.W.2d 390; Andrews v. Washington Nat. Ins., 93 S.W.2d 1045; Miller v. Rosebud Bank, 116 S.W.2d 267 234 Mo.App. 647; Sutorious v. Mayor, 170 S.W.2d 387, 350 Mo. 1235, 171 S.W.2d 69. Waiver is the intentional relinquishment of a known right. Sutorious v. Mayor, supra; Miller v. Rosebud Bank, supra; States ex rel. v. Shain, 66 S.W.2d 871, 334 Mo. 385. Rights are not waived unless such waiver is distinctly made with full knowledge of rights alleged to have been waived. Intention and meeting of minds: To establish waiver, it has been stated the evidence must indicate a meeting of minds as well as the intentional forbearance to enforce the right in question. 67 C. J. 311. "Waiver must be established by clean unambiguous evidence and the intention to waive must be free from doubt." Bankers Trust Co. v. Economy Coal Co. (Iowa), 276 N.W. 16.

C. T. Bloodworth for respondent.

The appellant, Hartford Insurance Company, waived its rights relative to the provision of the insurance policy warranties, as to equipment, loading, and operation of trucks and is therefore is no position on this appeal to insist that the court erred in overruling defendant's demurrer to the evidence at the close of the case, or to insist on a breach of warranty, because there was no partition placed between the cattle and hogs located on the truck. Linder v. Cape Brewery & Ice Co., 111 S.W. 600; Fairbanks, Morris & Co. v. Basket, 71 S.W. 1113; Springfield Gas & Electric Co. v. Southers Surety Co., 250 S.W. 78, 67 C. J. 294. A party cannot complain of the giving of an erroneous instruction which he has requested. Everhart v. Brison, 149 S.W. 307.

Fulbright, P. J. Blair and Vandeventer, JJ., concur.

OPINION

FULBRIGHT

This suit was instituted by plaintiff before a Justice of the Peace, in Butler County. A trial was had in that court and the case reached the Circuit Court of Butler County on appeal. A change of venue was granted and the cause sent to the Circuit Court of Ripley County, where a trial was had at the regular November Term, 1943, resulting in a verdict for plaintiff in the sum of $ 154.22. After an unsuccessful motion for a new trial defendant appealed to this court.

Plaintiff filed his formal pleading alleging among other things that he was duly insured by defendant against loss or injury to live stock while transporting same; that he accepted a shipment of five head of cattle from Arch King, the owner thereof, to the National Stock Yards, Illinois; that the cattle were delivered to the plaintiff in good condition in Butler County, and that "in the transportation of same two of said live stock, one cow and one heifer, were accidentally injured to such extent that they died from injuries upon arrival at their destination;" that King demanded payment for the injury to said stock in the sum of $ 133.22; that upon being notified defendant sent King a check for $ 84.29, which he refused; that he then filed suit against Badgett, the plaintiff herein, in justice court and procured judgment against him in the sum of $ 133.22, and that he was compelled to pay same together with court costs and attorney's fee, making a total of $ 179.07; that plaintiff gave due notice to defendant company of the injuries to the livestock, as provided in the policy and requested it to adjust the matter and to defend the action, which it refused to do. Judgment is asked for "the full extent of his cash loss in the sum of $ 179.07."

Plaintiff having elected to plead in strictness in the justice court is bound by such pleading the same as he would have been had the action originally been filed in the circuit court. [Strong v. Turner, 122 S.W.2d 71, l. c. 74; Usona Mfg. Co. v. Shubert-Christy Corp., 132 S.W.2d 1101, l. c. 1103.]

Defendant was not required to and did not file any pleading in the case. [Oliver Cadillac Co. v. Rosenberg, 179 S.W.2d 476, l. c. 479.] The appearance of a defendant in justice court, without pleading, operates to raise the general issue and defendant may prove anything that tends to show a valid defense. [Northrup v. The Mississippi Valley Ins. Co., 47 Mo. 435, 444, 4 Am. Rep. 337; Yount v. Spain (Mo. App.), 180 S.W. 17; Williams v. Kessler, 295 S.W. 482, l. c. 483, 484.]

Plaintiff's evidence shows that he was engaged in the business of transporting live stock by truck; that he carried an insurance policy with defendant company protecting him against loss by reason of injuries or death of live stock, solely by the hazards of transportation. The policy, which was offered in evidence by plaintiff, provided that the amount of liability should not exceed the actual cash market value at destination for slaughtering, stocker or feeder purposes. It also contains certain warranties, the pertinent one being as follows:

"Sec. Two: It is warranted by all parties hereto that . . . the live stock shall be loaded with due care and regard for the safety and proper preservation of the live stock; . . . that whenever the truckloads consist of mixed lots of live stock, that such different kinds of live stock shall be separated by substantial partitions securely and properly placed in the truck. . . . failure to comply with any of the aforesaid warranties shall relieve this company of any and all liability to any and all persons whomsoever."

The policy provides on its face that, "This policy is made and accepted subject to the foregoing stipulations and conditions printed on the back hereof which are specifically referred to and made a part of the policy . . ."

Plaintiff's evidence further shows that there were seven or eight head of cattle and sixteen or seventeen head of hogs loaded into plaintiff's one-deck truck, the bed of which was twelve feet long in the clear and seven feet, one or two inches wide and that there was no partition of any kind placed in the truck separating the cattle from the hogs, but that they were all loaded in together; that two head of live stock, one cow and one heifer, died just before or shortly after reaching their destination as a result of hogs getting on top of them after they were down and injuries caused by other stock trampling upon them; that plaintiff properly notified defendant company of the damages and loss of the cattle. Whereupon defendant sent Arch King, the owner thereof, a check for $ 84.29, which he refused; that King then sued the plaintiff herein and recovered judgment for $ 133.20, which defendant company refused to pay; that the two cows that were killed were worth around $ 135 or $ 140.

At the close of plaintiff's case defendant filed its demurrer to the evidence which was overruled by the court. Thereupon, defendant offered its evidence in the form of depositions, which in substance related to the identification, grade, weight and value of the cattle killed at the time they reached their destination, the value being shown as around $ 85. At the close of all the evidence defendant renewed its demurrer which was overruled by the court.

Defendant assigns as error the action of the trial court in overruling its demurrers.

The law is well settled, requiring no citations, that in filing its demurrer the defendant admits the truth of plaintiff's evidence and the conclusions a jury might reasonably draw therefrom. Therefore, the trial court, in...