Berry v. Equitable Fire & Marine Insurance Co.

• Decision Date: 16 September 1927
• Docket Number: 25965
• Citation: 298 S.W. 63,317 Mo. 1119
• Parties: R. W. Berry v. Equitable Fire & Marine Insurance Company, Plaintiff in Error
• Court: Missouri Supreme Court

298 S.W. 63

317 Mo. 1119

R. W. Berry v. Equitable Fire & Marine Insurance Company, Plaintiff in Error

No. 25965

Supreme Court of Missouri

September 16, 1927

Transferred from Springfield Court of Appeals.

Reversed.

D. A Murphy and Fyke, Snider & Hume for plaintiff in error.

(1) The policy sued on was issued to Carmack. He was the assured. The loss-payable clause, which it is alleged in the petition "was attached to the policy at the instance of plaintiff," was as follows: "Any loss under this policy that may be proved due the assured shall be payable to the assured and R. W. Berry, subject nevertheless to all the terms and conditions of the policy." Under this clause the plaintiff was not the assured, but was a mere appointee to receive payment of part of the loss that was proved to be due the assured Carmack, and anything that would defeat a recovery by the assured (Carmack) would defeat a recovery by plaintiff. Kabrich v. Ins. Co., 48 Mo.App. 397; Kempf v. Ins. Co., 41 Mo.App. 30; Van Buren v. Ins. Co., 28 Mich. 398; Sias v. Ins. Co., 8 F. 187; Gillett v. Ins. Co., 73 Wis. 203; Barrett v. Ins. Co., 7 Cush. 175; German Ins. Co. v. Hazelus, 21 Colo. 227; Union Bldg. Co. v. Ins. Co., 83 Iowa 647; Warbasse v. Ins. Co., 42 N. J. L. 203; Grosvenor v. Ins. Co., 17 N.Y. 391; Holbrook v. Ins. Co., 117 Cal. 561; Agricultural Ins. Co. v. Hamilton, 82 Md. 88; Franklin Sav. Inst. v. Ins. Co., 119 Mass. 240; Fidelity Phenix Ins. Co. v. Cleveland, 156 P. 639. (2) It is alleged in the petition and the reply that the policy as to Carmack was cancelled in April, 1922, long before the fire. From that time the policy was of course unenforceable by Carmack, and no loss could be proved to be due him. Therefore, plaintiff could not recover upon said policy. Authorities supra. (3) The breach of warranty in the policy as to the age of the car would defeat any action by Carmack, even if the policy had not been cancelled, and plaintiff is in no better position than Carmack. Smith v. Ins. Co., 188 Mo.App. 297; Buck v. Ins. Co., 209 Mo.App. 302.

McReynolds, McReynolds & Flanigan for defendant in error.

(1) The Missouri rule is that a mortgagee may sue and recover in his own name to the extent of his interest, where at the time of the loss he is in possession after condition broken. Walton v. Phoenix Ins. Co., 162 Mo.App. 316; Anthony v. German American Co., 48 Mo.App. 65. It will be patent from a reading of those cases that there is nothing in defendant's claim that Berry as mortgagee could not sue alone. (2) Carmack had no interest whatever under the policy. That being true he could not sue. The loss-payable clause provided that the loss should be paid to both. The defendant cancelled Carmack's interest and that left the loss payable to Berry only. (3) Defendant contends that it is well settled by all the authorities that under a loss-payable clause such as this, if for any reason the assured cannot recover, then the party named in the loss-payable clause cannot recover. Defendant then goes on to claim that the policy was void as to Carmack because it is alleged Carmack misrepresented the year of manufacture of the automobile. A misrepresentation as to year of manufacture will not be fatal where the assured furnishes other items of information which would lead to discovery of the truth. Traynor v. Ins. Co., 181 N.W. 566; White v. Home Mutual Ins. Co., 179 N.W. 315; Locke v. Royal Ins. Co., 220 Mass. 202; British & Foreign Ins. Co. v. Cummings, 113 Md. 350. (4) No notice of cancellation was ever served on Berry. Under the law he was absolutely entitled to a notice of cancellation. Where the policy was cancelled as to the assured, but no notice thereof was given to the mortgagee, the mortgagee has the right to recover on the policy in his own name. Gillman v. Com. Ins. Co., 112 Me. 528; Adams v. Farmer's Mutual Ins. Co., 115 Mo.App. 21; Lee v. New Hampshire, 70 S.E. 819; Rawl v. Am. Central Ins. Co., 45 L. R. A. (N. S.) 463; Glascock v. Liverpool Ins. Co., 188 S.W. 283; Bard v. Fireman's Ins. Co., 81 A. 870. (5) Edwards waived the provision against change of title, possession and ownership when he delivered the policy to Berry and assured him that the policy would be good if Berry would retake the car. Terminal Ice Co. v. Security Ins. Co., 198 S.W. 1124. Moreover, after the cancellation of April, 1922, the defendant company retained the premium and made no tender of the unearned premium to the plaintiff Berry until after the fire. This retention of premium constituted a waiver of all grounds of forfeiture which were known to the company. Shutts v. Ins. Co., 159 Mo.App. 436; Springfield Steam Laundry v. Traders Ins. Co., 151 Mo. 90; Thompson v. Traders Ins. Co., 169 Mo. 112; Gold Mining Co. v. Fire Ins. Co., 267 Mo. 524.

OPINION

Graves, P. J.

This case reaches this court upon certification by the Springfield Court of Appeals. Such certification is based upon the ground of conflict of opinions in the Courts of Appeals. The cause originated in the Circuit Court of Jasper County. Glancing over the brief, we note that the sufficiency of the petition is challenged. The petition is short, and we quote it in full as follows:

"For cause of action plaintiff states that defendant is a fire insurance corporation having and usually keeping in Jasper County, Missouri, an office and agent for the transaction of its usual customary business, to-wit, the business of writing policies of fire insurance. Plaintiff states that on the 30th day of September, 1921, the defendant issued to one C. Carmack, a certain policy of fire insurance, upon an automobile, the same being a 1917 Model 83 Overland Touring car, factory or serial number 48,747, by the terms of which policy the defendant insured the said Carmack for the space of one year, against direct loss or damage by fire, not to exceed $ 300, to the body, machinery and equipment of said automobile, while within the limits of the United States. Plaintiff states that there was attached to said policy, at the instance of the plaintiff, a loss-payable clause by the terms of which it was and is provided, that any loss under said policy should be payable to the assured and R. W. Berry. Plaintiff further states that at the time said policy was issued the plaintiff had, and ever since has had, and now has, an insurable interest in the subject of insurance, to-wit, said Overland automobile, the nature of his said interest being a chattel mortgage thereon, given by the said Carmack to the plaintiff to secure to plaintiff the payment of an indebtedness of $ 275, no part of which indebtedness has been paid to the plaintiff. Plaintiff states that said policy was issued at his instance and request, and that the plaintiff paid to defendant's agent the required premium on said policy, amounting to $ 7.65. Plaintiff states that thereafter the defendant cancelled said policy of insurance as to the said C. Carmack so that now the said Carmack has no rights under said policy, but that the said policy, as to the plaintiff, was never cancelled, but is now, and always has been, in full force and effect.

"Plaintiff further states that on June 23, 1922, and during the life of said policy the said automobile thereby insured was damaged by fire to the extent of $ 275. That the plaintiff has kept and performed all the terms and conditions of said policy of insurance, and that there is now due the plaintiff under said policy on account of said fire, the sum of $ 275, which sum the defendant has vexatiously refused to pay, although payment has been demanded. Plaintiff states that the said loss occurred and plaintiff's cause of action accrued within Jasper County, Missouri. Plaintiff states that a reasonable attorney's fee for bringing and prosecuting this suit is $ 100. Plaintiff files herewith said policy, and makes the same part of this petition.

"Wherefore plaintiff prays judgment against the defendant for the said sum of $ 275, being the amount of his loss under said policy, and in addition thereto, because of defendant's vexatious refusal to pay said loss, the sum of $ 100 by way of attorney's fees, and ten per cent of the amount of plaintiff's said loss, together with his costs."

The answer pleads no liability for several reasons, the particulars of which can be noted as occasion may require. Meeting some defenses pleaded in the answer the reply pleads estoppel by acts in pais, and this reply can be noted as occasion requires.

Upon trial nisi the plaintiff had judgment for $ 150, and this writ of error was sued out in the Springfield Court of Appeals. Counsel for plaintiff in error (defendant nisi) say that an appeal was perfected to the Springfield Court of Appeals, but add:

"The appeal by reason of the fact that defendant failed to serve counsel for the plaintiff with abstract of the record and brief as required by the rules of this court, was dismissed at the October term, 1923, of this court, and thereafter on the 18th day of October, 1923, writ of error was sued out by defendant and this case is now pending in this court upon a writ of error. Due notice of the suing out of this writ was served upon plaintiff's counsel and service thereof acknowledged November 1, 1923, which notice is attached to the record in this cause."

Going to the history of the case nisi, it should be said that the cause was tried before the court (without the intervention of a jury) upon the issues joined and the cause submitted to the court on December 20, 1922. At time of submission, time was given for the filing of briefs by both parties at the January term of the court at Joplin. On the 3rd day of February, 1923, at the January term of the court, the judgment aforesaid was entered. This writ of error was sued out October 18, 1923, and returnable...