Berryman v. Maryland Motorcar Ins. Co
| Decision Date | 10 June 1918 |
| Docket Number | No. 12925.,12925. |
| Parties | BERRYMAN v. MARYLAND MOTORCAR INS. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.
"Not to be officially published."
Action by T. A. Berryman against the Maryland Motorcar Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed if plaintiff will re-enter remittitur; otherwise reversed and cause remanded.
Ball & Ryland, of Kansas City, for appellant. Sebree, Conrad & Wendorfe, of Kansas City, for respondent.
Plaintiff's action is based on a policy of insurance whereby he was insured against loss by the burning of his automobile. He recovered judgment in the circuit court. The case was transferred to this court by the Supreme Court (197 S. W. 850). Defendant's answer set up several defenses, among them was one that plaintiff, when he obtained the policy, fraudulently represented that the machine was made in 15:11, when in fact it was made in 1908, that plaintiff warranted that he would not let the machine for hire, and afterwards violated the warranty, and that he fraudulently represented to defendant that he had paid $1,800 for the car when in fact he had only paid $850 for it. The prayer to that division of the answer was that, upon repayment of the premium collected from plaintiff, "the policy be adjudged null and void, and a decree canceling and annulling the same be entered, and for such other and further relief as the court might deem proper."
On account of that defense and that prayer, defendant insists the case was converted into one in equity to be heard on the equity side of the court without a jury. Mile it is true that an answer setting up an equitable defense to a petition declaring on a cause of action at law may convert the case into one in equity, yet such answer must show a case entitling the defendant to affirmative relief necessary to sustaining or ascertaining his rights. Plow Co. v. Hartman, 84 Mo. 610; Thompson v. Bank, 132 Mo. App. 225, 110 S. W. 681; Wolff v. Schaeffer, 4 Mo. App. 367; Lincoln Trust Co. v. Nathan, 175 Mo. 32, 42, 74 S. W. 1007; Shaffer v. Detie, 191 Mo. 377, 388, 90 S. W. 131.
In this case the policy was taken out the 25th of September, 1911, and expired by its own terms in one year, which was several months before defendant asked that the case be heard by the equity side of the court. There was no possible necessity for canceling a policy which was dead paper and no longer effective, and could not involve defendant in further liability. Matter like this was discussed by us in Thompson v. Bank, supra. Defendant cites us to Withers v. Railroad, 226 Mo. 373, 126 S. W. 432, but we think it not applicable to the facts of his case; on the contrary it is said in that opinion (page 396) to be recognized doctrine in this state that a case at law will not be converted into equity by answer, "unless affirmative relief is asked and is necessary to ascertain or sustain, the defendant's rights." (Italics ours.)
We have already alluded to a warranty contained in the policy that plaintiff would not let the machine for hire without written permission from defendant. It seems that on one or two occasions this provision was violated. But at the time the machine was burned it was not hired. The law is that temporary noncompliance with provisions of the policy, unless such provision is a warranty, will not work a forfeiture, if there was compliance at the time of the loss. Organ v. Ins. Co., 3 Mo. App. 576; Greenlief v. Ins. Co., 37 Mo. 25; Obermeyer v. Ins. Co., 43 Mo. 573; Kennefick-Hammond Co. v. Ins. Co., 119 Mo. App. 308, 80 S. W. 694; Id., 205 Mo. 295, 103 S. W. 957.
The provision now under review is called a warranty on its face, but if it is not a legal warranty in fact, it ought not to be so considered in law. The statute (sections 7024, 7025, R. S. 1909) has abolished warranties and turned them into mere representations, except the matter warranted is material to the risk. Now, in view of the legal proposition we have stated, the effect of this warranty was that, if the machine was not in hire at the time it was burned, there was no forfeiture, and a liability was incurred. It follows that the thing warranted against was not material to the risk, thereby becoming, under the statute, a mere representation.
There was evidence in the case tending to prove that the agent who procured the policy waived the warranty,...
To continue reading
Request your trial