Bernhardt v. Boeuf & Berger Mut. Ins. Co.

• Decision Date: 06 January 1959
• Docket Number: No. 30149,30149
• Court: Missouri Court of Appeals
• Parties: Kenneth F. BERNHARDT (Plaintiff), Respondent, v. BOEUF & BERGER MUTUAL INSURANCE COMPANY, a corporation (Defendant), Appellant.

Page 672

319 S.W.2d 672

Kenneth F. BERNHARDT (Plaintiff), Respondent, v. BOEUF & BERGER MUTUAL INSURANCE COMPANY, a corporation (Defendant), Appellant.

No. 30149.

St. Louis Court of Appeals, Missouri.

Jan. 6, 1959.

Theodore P. Hukriede, Washington, for appellant.

Dearing, Richeson & Weier, Samuel Richeson, Hillsboro, for respondent.

ANDERSON, Judge.

This is an action on a policy of insurance issued by the defendant to plaintiff wherein defendant insured a building then being built by plaintifff against 'all direct loss and damage by fire, hail, lightning, explosion, riot attending strike, civil commotion, aircraft, vehicles, smoke.' The evidence shows that the building in question was damaged when a bulldozer being used in connection with the construction ran into said building. There was a verdict and judgment for plaintiff in the sum of $5,000. From this judgment, defendant has appealed.

On this appeal it is contended that defendant's motion for a directed verdict should have been sustained for the reason the evidence showed that plaintiff had no insurable interest in the house in question. It is also contended that the court erred in the admission of certain evidence.

The evidence shows that the house in question was being erected by plaintiff on land that belonged to plaintiff's mother. Plaintiff and his mother lived together, and it was contemplated that they would live in the new house when it was completed. The evidence further shows that the mother promised that when the house was completed she would convey the land on which the house was situated to plaintiff. The house was not completed when the bulldozer ran into it, causing the damage for which plaintiff brought this suit.

The collision occurred when one of the workmen was 'back-filling' earth against the foundation walls. No question is raised as to the amount of the damages assessed, or that the bulldozer was a vehicle within the meaning of the policy. Plaintiff went into possession of the land in question and expended approximately the sum of $8,861.83, $4,000 of which he borrowed from his mother. There was testimony that the house in its then stage of construction was worth from $9,000 to $10,000. The evidence further shows that after it was damaged by the bulldozer the value of the house was reduced to $4,000 or $5,000.

The general rule is that anyone has an insurable interest in property who derives a benefit from its existence or would suffer a loss from its destruction. 44 C.J.S. Insurance Sec. 180, page 876; American Central Ins. Co. v. Kirby, Mo.App., 294 S.W.2d 556.

In view of all the facts and circumstances in this case we are of the opinion that insured had an insurable interest in the house in question. 44 C.J.S. Insurance Sec. 180, page 876; American Cnetral Ins. Co. v. Kirby, Mo.App., 294 S.W.2d 556; Mutual Fire Ins. Co. of Montgomery County v. Owen, 148 Md. 257, 129 A. 214. In the latter case, the insured built a house on land belonging to his ward, a minor. At the time, the minor agreed that when he became of age he would convey the land on which the house stood to the plaintiff. It was also agreed that the insured might remove the house from the land. Neither agreement was binding on the ward, since he was a minor. The court there held that the guardian had an insurable interest in the house and, after its destruction by fire, could recover on a policy of fire insurance. In affirming a judgment for plaintiff, the court said: (129 A. loc. cit. 217)

'It seems to be established that one who has built on the land of another, with that other's permission, has an insurable interest in the improvements thus built. Fletcher v. Commonwealth Ins. Co., 18 Pick. (Mass.) 419; Fireman's Fund Ins. Co. v. Gatewood, 10 Ky.Law Rep. 117; Southern Ins. & Trust Co. v. Lewis & Brothers, 42 Ga. 587; Hope Mutual Ins. Co. v. Brolaskey, 35 Pa. 282; Allen v. Sun Mutual Ins. Co., 36 La.Ann. 767, 38 L.R.A.,N.S., 429, note; Joyce on...