Boston Ins. Co. v. Fisher, 14171.

• Citation: 185 F.2d 977
• Decision Date: 25 January 1951
• Docket Number: No. 14171.,14171.
• Parties: BOSTON INS. CO. v. FISHER et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

185 F.2d 977 (1950)

BOSTON INS. CO. v. FISHER et al.

No. 14171.

United States Court of Appeals Eighth Circuit.

December 29, 1950.

Rehearing Denied January 25, 1951.

Jack O. Knehans, Cape Girardeau, Mo., for appellant.

Everett Reeves, Caruthersville, Mo. (James M. Reeves, Caruthersville, Mo., on the brief), for appellees.

Before SANBORN, JOHNSEN, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from a judgment for $19,000 and interest in favor of the plaintiffs (appellees) entered upon the verdict of a jury in an action on an insurance contract covering cotton gin machinery against certain risks, including loss by fire.

In substance, the claim of the plaintiffs was that an agent of the defendant (appellant), authorized to issue policies of fire insurance for it, entered into a contract of insurance covering to the extent of $19,000 against loss by fire the machinery in a cotton gin belonging to the plaintiff R. L. Fisher, at Marston, Missouri (in which machinery each of the plaintiffs had an insurable interest); that, while the contract was in the form of a certificate issued under a Master Policy which provided for insurance of the retained interest of the plaintiff Gullett Gin Company in cotton gin machinery sold by it "on deferred payments or conditional sales agreements" and the interests of the owner "when such interests are requested to be covered," the certificate was applied for and was intended and understood to cover all of the cotton gin machinery of R. L. Fisher in his gin at Marston, Missouri;¹ that the defendant charged and collected a premium of $741.00 from R. L. Fisher and the plaintiff Lake County Oil Mill, based upon a policy liability of $19,000; that the defendant has retained the premium; that, at the time the certificate was issued, the defendant knew that the Gullett Gin Company's interest in the insured property was about $4,000; that, with knowledge of the facts, the defendant waived the provisions of the Master Policy limiting its liability to the interests of the Gullett Gin Company and R. L. Fisher in so much of the machinery as he had purchased from that Company, and was estopped from asserting that the certificate covered only their interests in that machinery; that, while the certificate was in full force and effect, the insured property, which was of the reasonable value of $37,500, was destroyed by fire, and that the defendant thereby became indebted to the plaintiffs in the sum of $19,000 and interest.

The defendant denied liability under the certificate, except for $3,859.50 to the Gullett Gin Company and R. L. Fisher, the reasonable value of the machinery which Fisher had purchased from that Company. The defendant contended that the contract of insurance consisted of the certificate and the Master Policy and that the coverage was fixed by those instruments and could not, under applicable Missouri law, be expanded by waiver or estoppel to cover the interests of the other plaintiffs.

Since it appears that the defendant has on this appeal presented nothing for review except possibly the question whether the District Court committed some obvious and vital error which in the interests of justice this Court should notice, a detailed statement of the facts disclosed by the evidence is unnecessary.

At the close of the plaintiff's evidence upon the trial, the defendant, without resting, filed a motion to dismiss "in so far as the plaintiffs Clyde Berry and Lake County Oil Mill, a corporation, are concerned, and for grounds therefor defendant states that under the law and the evidence the defendant is not indebted to said plaintiffs and said plaintiffs are not entitled to recover from the defendant." The motion was not granted. The defendant introduced its evidence. That constituted a waiver of the motion. Union Pacific Railway Co. v. Callaghan, 161 U.S. 91, 95, 16 S.Ct. 493, 40 L.Ed. 628; Hansen v. Boyd, 161 U.S. 397, 403, 16 S.Ct. 571, 40 L.Ed. 746; Geo. D. Horning, Inc. v. McAleenan, 4 Cir., 149 F.2d 561, 565; Boulter v. Commercial Standard Ins. Co., 9 Cir., 175 F.2d 763, 768; Ruud v. American Packing & Provision Co., 9 Cir., 177 F.2d 538, 542-543.

No motion was made by the defendant for a directed verdict at the close of all of the evidence. Therefore, the sufficiency of the evidence to sustain the verdict and judgment may not be reviewed by this Court.

In the case of Emanuel v. Kansas City Title & Trust Co., 8 Cir., 127 F.2d 175, a plaintiff attempted to raise the question of the sufficiency of the evidence to support a verdict for the defendant, although the plaintiff had made no motion for a directed verdict. He asserted that the attitude of the trial court was such that it would have been useless for him to make such a motion. This Court said at page 176 of 127 F.2d: "* * * But if the plaintiff intended to appeal in case the verdict went against him and to challenge the sufficiency of the evidence to support a judgment for the defendant, it was essential that he request the trial court to direct the...