Bandy v. East & West Ins. Co.
| Decision Date | 14 May 1942 |
| Docket Number | No. 6220.,6220. |
| Citation | 163 S.W.2d 350 |
| Court | Missouri Court of Appeals |
| Parties | BANDY v. EAST & WEST INS. CO. |
Appeal from Circuit Court, Stone County; Robert L. Gideon, Judge.
"Not to be published in State Reports".
Action by Lloyd J. Bandy against the East & West Insurance Company on a fire policy. From a judgment for plaintiff, defendant appeals.
Affirmed on condition of a remittitur.
C. T. Craig and R. H. Davis, both of Joplin, for appellant.
A. R. Dunn, of Neosho, for respondent.
This is an appeal from a judgment for plaintiff (respondent here) in the sum of $800 and attorneys' fees, in the sum of $125. Defendant (appellant) filed a motion for new trial and the same was overruled. Judgment was entered on the verdict of the jury and an appeal to this court was granted to defendant.
There is no controversy about the facts; but, since one of the assignments of error is that a demurrer to defendant's evidence should have been sustained on those facts, we will briefly state the facts.
Defendant is an insurance company under the laws of Connecticut and is authorized to transact an insurance business in Missouri. There was in force and effect an "open" or "master" insurance policy No. 103378 issued by defendant to the predecessor of, and eventually to, the Greene Finance Company, and a certificate No. 3424 was issued by the representative of the Greene Finance Company to plaintiff, whereby plaintiff, a trucker, was insured on his truck against fire and other hazards. Said truck and its contents were destroyed by fire north of Kansas City, Missouri, within the policy period.
Said certificate No. 3424 contained the following endorsement:
The policy issued to Greene Finance Company, under which such certificate was issued, contained the following provision: "Unless otherwise provided by agreement in writing added hereto, and except as to any lien, mortgage, or other encumbrances, specifically set forth and described in paragraph `D' of this policy, this company shall not be liable for loss or damage to any property insured hereunder while subject to any lien, mortgage, or other encumbrance."
Certificate No. 3424 was a certificate attached to the amended petition; but policy No. 103378 was not so attached, and the trial court overruled a motion of defendant to compel plaintiff to attach such policy or to subject him to a dismissal of the suit. Failure of the trial court to do so is assigned as one of the errors, to be hereafter considered.
The owner of the truck placed an additional encumbrance or other mortgage on the truck after the certificate was issued, and the first encumbrance was paid off in full. Defendant contends, among other things, that it was not liable in the suit, because plaintiff drove the truck mentioned in the certificate more than fifty miles from its usual place of garaging, and was so driving said truck when he suffered the admitted loss; and defendant also contends that it had no knowledge of the fact of the execution of the last chattel mortgage and was not liable on that account. Defendant also attacks the assessment of attorneys' fees for alleged vexatious refusal to pay the amount of the loss.
Plaintiff contends that policy No. 103378 was never delivered to him and that he had no knowledge of the provisions in the certificate that the truck should not be driven at any time more than fifty miles from the place of its usual garaging (Monnett), and that plaintiff did not violate said provisions anyway, because he was hauling for himself at the time of the fire, and not then engaged in commercial hauling for others. Respondent also contends that the chattel mortgage given was in reality a renewal of the former encumbrance on said truck, and that defendant had full knowledge thereof, as defendant's agent had full knowledge of the last chattel mortgage, and his knowledge was the knowledge of the defendant.
Plaintiff also asked ten per cent damages and attorneys' fees for vexatious failure and refusal to pay the loss. The jury apparently did not allow plaintiff more than the actual loss on the truck and attorneys' fees, and allowed nothing for other damages.
The motion for new trial is set out in the abstract and contains twenty assignments of alleged errors of the trial court. Only eighteen assignments of error are set out in the appellant's brief in this Court. We will not undertake to discuss separately each of the voluminous assignments of error. We will attempt to consolidate the complaints, which we feel deserve full consideration. Such complaints can be boiled down to much fewer assignments of error than appellant now makes. There are really only a few of such assignments. As we see it, they are:
The alleged error of the trial court in overruling defendant's motion to require plaintiff to attach to the amended petition policy No. 103378 or a sworn copy thereof; the alleged error of the trial court in ruling that defendant did not avoid liability under the policy as to the damage caused by the fire, when plaintiff was driving the truck more than fifty miles from the place of usual garaging; the alleged error of the trial court in holding that liability under the policy was not avoided by the giving of the last chattel mortgage on the truck; and lastly, the alleged error of the trial court in submitting to the jury the alleged vexatious refusal of defendant to pay the loss. Other assignments are more or less dependent on the assignments named, and, in our opinion, do not require separate consideration.
As to the alleged error of the trial court in not compelling plaintiff to attach to his amended petition policy No. 103378, the appellant claims that this was necessary, as provided by Section 815, R.S.Mo. 1929, under which this case was tried. Section 967, R.S.Mo.1939, Mo.R.S.A. § 967. While this suit, at least in part, was based upon policy No. 103378, it was also based on certificate No. 3424, and, but for the latter, plaintiff would not have been entitled to any coverage under policy No. 103378. Plaintiff did attach to his amended petition certificate No. 3424, as exhibit "A" thereof, and alleged that policy No. 103378 was not in plaintiff's possession and had never been seen by him. During the trial, certificate No. 3424, and, at least, parts of policy No. 103378 were introduced in evidence. We think this was sufficient under the circumstances and rule this assignment of error against defendant. Simmons v. Universal Life Ins. Co., 227 Mo.App. 1238, 61 S.W.2d 382.
The fire, destroying plaintiff's truck, occurred north of Kansas City, Missouri, and admittedly more than fifty miles from the place such truck usually garaged. Appellant claims that this fact avoided liability under the policy and the certificate and, therefore, the trial court is charged with error in refusing to hold that recovery could not be had for the loss. The certificate, quoted by plaintiff and attached to the amended petition, carried an endorsement heretofore set out and shown on page 32 of the abstract. Under that endorsement, the "regular and frequent" use of plaintiff's truck was "confined during the policy period to the territory within a 50-mile radius of the limits of the city or town of principal garaging of such automobile." Although respondent argued that the trip on which plaintiff was engaged was not a commercial trip, because plaintiff was hauling a load belonging to himself, we think the clause merely forbade the use of the "commercial automobile" described in "regular and frequent" trips outside of the limit prescribed. Before the certificate described will be violated on that ground, such use must have been "regular and frequent", regardless of whether such use was personal or for others. As defendant sought to avoid liability on the ground of such usage, the duty of going forward with the evidence on that point rested on defendant. Hill v. Connecticut Mut. Ins. Co., 235 Mo.App. 752, 146 S.W.2d 651, loc. cit. 659. Much of the testimony as to the use...
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