Block v. United States Fidelity & Guaranty Company

• Decision Date: 30 December 1926
• Docket Number: 25914
• Citation: 290 S.W. 429,316 Mo. 278
• Parties: Arnold Block, Appellant, v. United States Fidelity & Guaranty Company
• Court: Missouri Supreme Court

290 S.W. 429

316 Mo. 278

Arnold Block, Appellant, v. United States Fidelity & Guaranty Company

No. 25914

Supreme Court of Missouri

December 30, 1926

Motion for Rehearing Overruled December 30, 1926.

Transferred from Kansas City Court of Appeals.

Reversed and remanded (with directions).

J C. Rosenberger, R. E. Talbert and Dupuy G Warrick for appellant.

(1) Respondent company contends, for the first time, in its brief filed in this court that the allegations contained in plaintiff's petition as to defendant's vexatious refusal to pay the losses sued for, and on which the case was tried, are the statement of a mere conclusion of the pleader and hence insufficient to support a recovery of attorney's fees under Sec. 6337, R. S. 1919. To this contention there are several answers: (a) This contention is not open to the company because it made no attack on the petition in the trial court by motion, demurrer or otherwise. (b) Also because the allegations of the petition were sufficient, and to hold otherwise would be virtually to nullify this salutary statute. (c) Also because the company tried the case in the trial court on the theory that plaintiff's right to recover attorney's fees was properly in issue and it is bound by that theory. The company permitted the evidence of value of the attorney's fees to go in without objection or exception. In such case it is well settled that such alleged insufficiency of the petition is deemed cured after verdict, and the party will not be heard, for the first time, on appeal to attack the sufficiency of a general allegation upon which a recovery has been had. Geninazza v. Auction Co., 252 S.W. 417; Machinery Co. v. Bottling Co., 273 Mo. 142; Simpson v. Wells, 237 S.W. 526; Tebeau v. Ridge, 261 Mo. 547; Lopez v. Hines, 254 S.W. 37; Thomasson v. Mercantile Co., 217 Mo. 485; Wyler v. Ratican, 150 Mo.App. 474; Dieter v. Zbaren, 81 Mo.App. 612; McQuade v. Railroad, 200 Mo. 150; Hecfuss v. Am. Packing Co., 224 S.W. 99; Dickens v. Wells, 245 S.W. 563. The petition is in the very language of the statute, and the rule is well settled that it is proper to plead a liability under a statute in the language of the statute. 31 Cyc. 115; Patrick v. Haskell County, 105 Kan. 153; Rock Island Co. v. Printing Co., 71 Ill.App. 636; Jarvis v. Hamilton, 16 Wis. 574; Rosselle v. Klein, 59 N.Y.S. 94. The charge made by the petition that the company's refusal to pay was "vexatious" was a plea of the ultimate fact, and clearly apprised the defendant that it was called upon to defend the charge that its refusal was without just cause or excuse. To have pointed out how or wherein the company's refusal was in bad faith, would be to require plaintiff to allege matters of evidence, which is never proper. McQuillin's Pleading and Practice, sec. 282; Wilkerson v. McGee, 153 Mo.App. 343; Hillbrant v. Donaldson, 69 Mo.App. 92; Coleman v. Treece, 149 Mo.App. 61; Eagleton v. Kabrich, 66 Mo.App. 231; Stainer v. Mining Co., 166 F. 220. The company having tried the case below upon the theory that the good faith of its refusal was in issue, and having tried that issue, it will not be permitted to abandon or repudiate such theory on appeal. Palmer v. Shaw Transfer Co., 209 S.W. 882; Simpson v. Wells, 237 S.W. 528; Machinery Co. v. Bottling Co., 273 Mo. 142; Allen Co. v. Richter, 286 Mo. 691; Nat. Board v. Fry, 237 S.W. 519; Osagera v. Shaff, 240 S.W. 124; Hayes v. Kansas City, 294 Mo. 655; LaCrosse Lbr. Co. v. Powell, 247 S.W. 1022; Harris v. Weber Motor Co., 212 Mo.App. 107. (2) It being admitted by the company that it immediately after the first burglary in question learned that plaintiff had moved from the location described in the policy, and that he was making claim under the policy, instead of asserting a forfeiture of the policy, retained the premium and failed to cancel the policy, thereby acquiescing in the change of location and treated the policy as still in force, and thereby estopped itself from afterward asserting that it had not consented to the removal, and this irrespective of any question of authority of the agents to consent to the removal. McIntyre v. Ins. Co., 131 Mo.App. 92; Rhodus v. Ins. Co., 156 Mo.App. 281; Union Trust Co. v. Ins. Co., 79 Mo.App. 362; Harland v. Ins. Co., 192 Mo.App. 198; Jegglin v. W. O. W., 202 Mo.App. 367; Dyer v. Ins. Co., 244 S.W. 964. (3) It was erroneous to deprive plaintiff of his verdicts for his two losses merely because he stood upon his right to the statutory attorney's fees allowed by the jury, and this for two reasons. (a) Because the evidence warranted the assessment of attorney's fees, and (b) Because if the fact were otherwise, the issues involved in plaintiff's right to recover his losses were entirely separate and distinct from the issue of vexatious refusal to pay, and were separately found by the jury and there was no just reason for depriving plaintiff of his verdicts for the amounts of his losses -- verdicts fully approved by the trial court -- merely because the trial court disapproved the jury's finding on the independent issue of vexatious refusal to pay.

R. E. Ball for respondent.

(1) The errors committed by the lower court in the admission of evidence offered by appellant as well as of instructions asked by him and given by the court completely justified that court's order granting a new trial, and would logically lead to an affirmance of that order on this appeal. (a) Because the motion for a new trial served the point abundantly. Carnie v. Toll, 281 S.W. 41. (b) Because the motion for a new trial preserved all objections to instructions given or refused and the excessiveness of the verdict. State ex rel. Railroad v. Smith, 172 Mo. 446. (c) Because not only was the trial court right in granting a new trial, but Judge Trimble was right in asking the Court of Appeals to certify the cause to this court. State ex rel. Ins. Co. v. Allen, 303 Mo. 608. (d) Because the second amended reply seeks really to amend plaintiff's petition by contradicting the same, for it is a suit on a written instrument which does not reach and say itself that it was intended to cover the address on McGee Trafficway, and to have said amended reply discharge a function of an amendment to the petition, which it cannot do. Moss v. Fitch, 212 Mo. 484; R. S. 1919, secs. 1235, 1237; Crawford v. Spencer, 36 Mo.App. 82; Step v. Livingston, 72 Mo.App. 179; Jackson v. Powell, 110 Mo.App. 252; Hill v. Mining Co., 119 Mo. 9; Mohney v. Reed, 40 Mo.App. 99. (e) Because said amended reply seeks for the first time to inject an issue in parol which is made the main issue here, not limited to the petition on which the case is founded, and thus appellant gets a hearing on a cause of action not mentioned in the petition, ignoring the statute in regard to a reply that it shall "consist" and be limited to "the new matter in the answer." R. S. 1919, sec. 1235. Moss v. Fitch, 212 Mo. 503. (2) The court erred in giving at plaintiff's request Instruction 2 because said instruction erroneously assumes, without any proof thereof, that witness Dora L. Hutchinson talked over the phone to some employee of McGee & Sons, agents of defendant, when the witness Hutchinson failed and refused to identify the person with whom she talked as being an employee of McGee & Sons. (3) Because the court erred in refusing to give at the conclusion of all the evidence defendant's instruction in the nature of a demurrer to the plaintiff's petition and evidence. (a) For the reason that there was no contract at 2433 McGee Street Trafficway. (b) For the further reason that the court could not make a contract as a matter of law for the parties. (c) For the further reason that a reply cannot state anything except what is set up in the answer, and a reply cannot serve the function of an amendment to the plaintiff's petition. (4) It is unjust to respondent to construe this policy by examining those parts of the printed matter which, whatever they were intended to mean, have no application, or, as Judge Goode says, "no relevancy to the question of liability" here. Casner v. Casualty Co., 116 Mo.App. 354; Michaels v. Fidelity & Cas. Co., 128 Mo.App. 18. (5) If the question arising goes to the consideration of the original policy, no agent can waive anything which will have the effect to give validity to the policy. In such case, there would be no consideration for it. Graham v. Ins. Co., 110 Mo.App. 95; Banks v. Clover Leaf Cas. Co., 207 Mo.App. 357; McKee v. Rudd, 222 Mo. 344.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Action to recover for two burglary losses, alleged to have been suffered by plaintiff, upon an open stock burglary policy issued by defendant for a term beginning on November 20, 1919, and ending one year thereafter, and renewed for another year terminating on November 20, 1921. The petition is cast in two counts, each based upon a separate and distinct burglary loss.

Plaintiff at the times herein mentioned, was a retail dealer in automobile tires and accessories. On September 5, 1919, he purchased the business and stock of merchandise of one Fritz Meyn, doing business as Lotta Miles Tire Company, at 2305 Grand Avenue in Kansas City, Missouri. The policy sued on was taken out by plaintiff on or about November 20, 1919, through Brown, Mann & Barnum, insurance agents in Kansas City. It is executed on behalf of defendant company by John R. Bland, president, and R. Howard Bland, secretary, and countersigned at Kansas City, Missouri, by Thomas McGee & Son, its authorized representative. On or about March 4, 1920, plaintiff discontinued the use of the trade-name, Lotta Miles Tire Company, and changed the name to Block Tire Company, and a rider, countersigned by "Thomas McGee & Son, Authorized Representative," was issued by defendant ...