Booker v. Motors Ins. Corp., 6881

• Decision Date: 27 April 1950
• Docket Number: No. 6881,6881
• Citation: 228 S.W.2d 694
• Parties: BOOKER v. MOTORS INS. CORPORATION.
• Court: Missouri Court of Appeals

Page 694

228 S.W.2d 694

BOOKER v. MOTORS INS. CORPORATION.

No. 6881.

Springfield Court of Appeals, Missouri.

April 27, 1950.

Rehearing Overruled May 19, 1950.

R. W. Hawkins, Caruthersville, for appellant.

Ward & Reeves, Caruthersville, for respondent.

BLAIR, Judge.

This appeal is from the judgment of the Circuit Court of Scott County, Missouri, sustaining defendant's (respondent's) motion for judgment on the pleadings. It was argued in this Court by appellant alone.

The petition, set out in full in the transcript, and in plaintiff's (appellant's) brief, was originally filed, on April 10, 1948, in the Circuit Court of Pemiscot County, and afterwards the case went to Scott County on change of venue.

The petition alleged that defendant insured plaintiff against loss by fire upon a Chevrolet truck for a term from March 12, 1947, to March 12, 1948, and that plaintiff sustained a loss to said truck by fire, on March 12, 1948, and defendant was liable therefor, under its policy; that plaintiff made demand on defendant and defendant denied liability and refused payment.

It is stated in the petition that the fire occurred between seven and eight o'clock, P.M., on March 12, 1948, and plaintiff contends that, even though the fire occurred after 12:01 A.M. March 12, 1948, defendant was liable to it, under paragraph 2 of his petition, which was as follows: 'Plaintiff states that shortly after the fire, the defendant sent its adjuster to visit the premises and view the partially destroyed truck; and thereupon said adjuster agreed and acknowledged to the plaintiff that said truck was partially destroyed by fire, and that the loss and damage of plaintiff was the sum of $775.00 less the salvage; and the said adjuster contracted and agreed with the plaintiff, that if plaintiff would assign the certificate of title to said truck to the defendant; that the defendant would pay plaintiff the sum of $775.00. That in consideration of said contract and agreement, the plaintiff did, on the 27th day of March, 1948, legally assign his title to said truck to the defendant; that in pursuance to said contract and agreement the defendant took the possession of said truck and said certificate of title. That the plaintiff now refuses, although demanded, to pay plaintiff said sum of $775.00.'

In paragraph 4, plaintiff prayed actual damages in the sum of $775.00, with interest thereon from March 12, 1948, and for 10% punitive damages, and an attorney's fee of $250.00.

In its answer, defendant first alleged that the policy was not in force, when the fire occurred. In paragraph 2 of its answer, defendant alleged that its adjuster had no power or authority to enter into an agreement, as alleged in paragraph 2 of plaintiff's petition.

In his reply to such answer, plaintiff denied that the fire occurred after the policy of insurance had expired, even though such fire occurred after 12:01 A.M. March 12, 1948, on account of ambiguity in the policy itself. The reply also alleged that plaintiff had a cause of action against defendant, because of what was done by defendant's adjuster, after such fire occurred.

In asserting that defendant's adjuster had the authority to do what he did do, plaintiff quotes, in paragraph 2 of his reply, a writing, attached to the policy of...