Best v. Liverpool & London & Globe Ins. Co.

• Decision Date: 03 May 1932
• Docket Number: No. 21879.,21879.
• Citation: 49 S.W.2d 230
• Court: Missouri Court of Appeals
• Parties: BEST et ux. v. LIVERPOOL & LONDON & GLOBE INS. CO., Limited.

49 S.W.2d 230

BEST et ux. v. LIVERPOOL & LONDON & GLOBE INS. CO., Limited.

No. 21879.

St. Louis Court of Appeals. Missouri.

May 3, 1932.

Appeal from Circuit Court, Pike County; W. C. Hughes, Judge.

"Not to be officially published."

Action by J. R. Best and Mrs. J. R. Best against the Liverpool & London & Globe Insurance Company, Limited. From judgment for plaintiffs, defendant appeals.

Affirmed.

R. L. Motley, of Bowling Green, and Creech & Creech, of Troy, for appellants.

J. E. Thompson and J. D. Hostetter, both of Bowling Green, for respondent.

NIPPER, J.

This is a suit to recover on a fire insurance policy. The petition is in two counts. The first count seeks to recover for the loss of a barn and a brooder house, in the total sum of $175; the second count seeks to recover for the loss of a dwelling and chicken house, for a total value of $850. The petition also seeks to recover damages for vexatious refusal to pay.

The policy sued on was issued on November 3, 1929, insuring against loss by fire for a period of three years.

The answer admits the execution of the policy and the receipt of the premiums and tender of the premiums paid, and sets up as an affirmative defense that, after the policy was issued and delivered, without the written consent and knowledge of defendant, the premises described had become vacant, uninhabited, and unoccupied, for a period of ten days after the issuance of the policy and prior to the date that the property was destroyed.

At the trial plaintiff introduced in evidence the insurance policy and a letter written by the local agent for the insurance company at Bowling Green, Mo., in which he advised that he had notified the defendant advising that such fires occurred on the nights of September 8 and 9, 1930. The policy contained a provision that the property should not be unoccupied, uninhabited, or vacant, for a period of ten days, if such policy was to be paid in case of fire.

The plaintiffs did not live in the property insured, or on the premises where the property was located. The property had been placed in the hands of Elmer Hearn, a brother of Mrs. Best. The improvements were located upon a forty-acre tract of land near Bowling Green, Mo. One Hill first moved into the property at about the time of the issuance of the policy, and remained in the property until a short time before the fires. There was some evidence on the part of plaintiffs that Hill remained in the property until two or three days before Talberts moved in, which was about the 7th day of March, 1930. About the 1st of July, 1930, Talbert took a position on a government boat, doing construction work on the Mississippi river, about thirty-five or forty miles away from the property, and was working there at the time of the fires, but maintained this as his home, and he and his wife occupied it as their home until about the 17th of August, following. On or about the last-named date, Mrs. Talbert left her husband, and went to live in another home. Talbert returned to the home from his job on the boat regularly on week-ends, except on one occasion. During this time he had some furniture, consisting of beds, cook stoves, tables, etc., as well as his clothing, in the dwelling, which was used by him. This property burned up when the fire occurred. Some two or three days before the fires occurred, Mr. Hearn made some repairs on the property during Talbert's absence.

Defendant contends that Talbert was not occupying the premises by living there, but only by occasionally visiting the house. Talbert was at the house on Saturday and Sunday before the fires.

Defendant offered instructions in the nature of demurrers to the evidence at the close of plaintiffs' case and at the close of the whole case. The court overruled these, and submitted the case to the jury, which found for the plaintiffs on both counts of the petition, together with attorney's fees, and no penalties, and defendant has in due time appealed to this court.

Defendant first insists that the instructions in the nature of demurrers to the evidence requested by it should have been given; this, because the evidence conclusively showed that the buildings described were vacant, unoccupied, and uninhabited, and so remained for a period of ten days, without the written consent of the defendant. We do not think it can be said that the evidence in this case is conclusive that the premises were unoccupied for a period of ten days. It is true that at the time of the fires no one but Talbert could be said to be occupying the premises. His wife had left him, but his clothing and household goods were in the building, and he made this place his home and occupied it as such by returning from his employment on week-ends. It was certainly Talbert's place of abode, and any occupancy which satisfies the condition of the policy is sufficient. Florea v. Iowa State Ins. Co., 225 Mo. App. 49, 32 S.W.(2d) 111.

Defendant also complains of the court's action in giving the jury the following instruction: "The Court instructs the jury that even though you may believe from the evidence that the...