Billings v. Independent Mut. Fire Ins. Co.
| Decision Date | 16 September 1952 |
| Docket Number | No. 28441,28441 |
| Citation | 251 S.W.2d 393 |
| Parties | BILLINGS v. INDEPENDENT MUTUAL FIRE INS. CO. |
| Court | Missouri Court of Appeals |
Sluggett & Sluggett, and John T. Sluggett, III, St. Louis, for appellant.
Shifrin & Shifrin, and Louis Shifrin, St. Louis, for respondent.
LA DRIERE, Judge.
This is a suit on two fire insurance policies issued by defendant to cover household furniture which was destroyed by fire on December 11, 1950. The controversy was submitted on an agreed statement of facts to the trial court, which found for defendant and plaintiff appealed. For convenience, designation of the parties below will be followed here.
The plaintiff assigns as error (1) that non-payment of premiums is an affirmative defense and this was not pleaded in defendant's answer;(2) that the policies were in full force and effect at the time of loss.
Defendant asserts that its defense is not based on non-payment of premiums with consequent lapse of policies, but that under the very terms of the policies themselves recovery is barred.
Stipulation of facts filed by the parties below admits the issuance of the policies, the loss by fire, demand and refusal to pay, and includes, among other things, Exhibits A and B, the policies in question, which provide for payment of the original premium
'Before the date hereof and thereafter the payment of a like premium in advance on or before Monday of each week hereafter as renewal premiums * * *'
and
The stipulation also provides, in Section 3 thereof,
However, by Paragraph 4 of the stipulation 'Exhibit C is attached hereto (and) is the weekly premium receipt book showing the money paid by the plaintiff to the defendant as premiums on said policies of insurance for the period of time shown on said exhibit', from which premium receipt book is copied the following as to payments made, the dates thereof, and periods to which such payments were applied:
Weekly Date when due Date when paid
Premium Day Month Day Month
.50 11 Sept
.50 18 30 10
.50 25 30 10
.50 2 Oct. 11 11
.50 9 11 11
.50 16 11 11
.50 23 11 11
.50 30 9 12
.50 6 Nov. 9 12
.50 13 9 12
.50 20 9 12
.50 27 11 12
.50 4 Dec. 11 12
11
Preliminary to discussion on the merits it should be observed that under Section 510.310, subd. 4, RSMo 1949, V.A.M.S., this Court will review an action at law tried without a jury, both upon the facts and the law and judgment should not be set aside unless clearly erroneous. Cosentino v. Heffelfinger, 360 Mo. 535, 229 S.W.2d 546, loc. cit. 549; House v. Santa Fe Trail Transportation Co., Mo.Sup., 217 S.W.2d 382, loc. cit. 383.
It is also true that in case of ambiguity in an insurance policy it will be liberally construed in favor of insured and against forfeiture or lapse. Fallis v. Massachusetts Bonding & Ins. Co., 210 Mo.App. 579, 243 S.W. 217; Watson v. Commonwealth Life & Accident Ins. Co., Mo.App., 17 S.W.2d 570.
As to the first contention of the plaintiff, i. e., that non-payment of premiums should have been pleaded by the defendant, it is sufficient to say that the stipulation of facts filed by the parties shows that defendant, though claiming that payments were out of time, admits they were actually made. It denies liability on the theory that under the terms of the policy itself any reinstatement shall be 'only to cover such loss as may be sustained by fire occurring more than three days after such acceptance', of premiums in arrears. Since such defense is based on the terms of the policy and not on its lapse for non-payment of premiums, this point is ruled against plaintiff. Bowdon v. Metropolitan Life Ins. Co., 227 Mo.App. 710, 59 S.W.2d 787,790.
Moreover, if there was an affirmative defense which it was necessary to plead, plaintiff could not avail herself of the point in view of her action in agreeing to and filing the stipulation of facts including the exhibits. It was said in Kennedy v. National Accident & Health Ins. Co., Mo.App., 76 S.W.2d 748, loc. cit. 754, in a similar situation:
See also Warren v. Royal Exchange Assur. Co., Mo.App., 205 S.W.2d 744, loc. cit. 747.
Plaintiff next contends that the policies were in benefit at the time of loss evidently on the theory that to hold otherwise 'would require the insured to pay something for nothing and would, therefore, be without consideration'. There is no question about the validity of that principle of law. It was so held in Fallis v. Massachusetts Bonding & Ins. Co., 210...
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