Buhlinger v. United Firemen's Ins. Co.

• Decision Date: 07 May 1929
• Docket Number: No. 20717.,20717.
• Citation: 16 S.W.2d 699
• Parties: BUHLINGER v. UNITED FIREMEN'S INS. CO. OF PHILADELPHIA.
• Court: Missouri Court of Appeals

16 S.W.2d 699

BUHLINGER v. UNITED FIREMEN'S INS. CO. OF PHILADELPHIA.

No. 20717.

St. Louis Court of Appeals. Missouri.

May 7, 1929.

Appeal from Circuit Court, St. Louis County; Jerry Mulloy, Judge.

"Not to be officially published."

Action by Louis Buhlinger against the United Firemen's Insurance Company of Philadelphia. Judgment for plaintiff, and defendant appeals. Reversed.

Harry C. Wilson, Thos. O. Stokes, and R. E. Finnegan, all of St. Louis, for appellant.

C. J. Pursey, of St. Louis, and John H. Haley, of Clayton, for respondent.

HAID, P. J.

This was an appeal from a judgment in favor of plaintiff for $700 on a policy of fire insurance on sheds, outbuildings, and fences on described premises. The petition counted on the fact that plaintiff had an interest in the property insured as the owner thereof. The answer was a general denial coupled with a plea that the policy was void according to its terms, because the interest of the insured in the property was not truly stated, and that the interest of the insured in the property was other than unconditional and sole ownership, and that the insured building was on ground not owned by the plaintiff in fee simple; these defenses being based upon provisions in the policy.

The case was tried to the court upon the following agreed statement of facts and the testimony of plaintiff:

"It is hereby stipulated and agreed by and between the parties in the above entitled cause as follows:

"1. A jury is hereby waived and it is agreed that this cause may be tried by the Court without a jury both as to issues of fact and law.

"2. The policy in suit (Exhibit A in the petition) may be introduced in evidence without further identification other than this stipulation.

"3. That the fee-simple title to said lot at the time said policy was issued was and is now in Veronica Adamec.

"4. That plaintiff had the possession of the premises described in the petition under and by virtue of the following written instrument, which was the only agreement between plaintiff and his lessor:

"`Ground Lease.

"`This indenture, made this fifteenth day of February, 1926, by and between Veronica Adamec, party of the first part, and John J. Colligan and Louis Buhlinger, parties of the second part:

"`Witnesseth, that the said party of the first part, for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by the said parties of the second part, has demised and leased to the said parties of the second part all those premises situate, lying and being in the County of St. Louis and State of Missouri, known and described as follows, to wit:

"`Lot sixteen (16) of Jesse Stoner's Subdivision in block one hundred and eighty-four (184) of the Carondelet Commons, South of the River des Peres, containing 2.338 acres, and the use of one hundred and twenty-two (122) chairs and thirty-two (32) tables, now on the premises in good condition.

"`To have and to hold the said above described premises, with all the privileges and appurtenances belonging to the same, unto the said parties of the second part, from the fifteenth day of February, 1926, to the fourteenth day of February, 1928, with the privilege of continuing three years longer on the same terms and conditions.

"`And the said parties of the second part, in consideration of the leasing of the premises aforesaid, do covenant and agree with the said party of the first part to pay to the said party of the first part, as rent for the said premises, in amount and manner as follows, to wit: Twelve hundred and 00/100 ($1200.00) dollars per annum, payable $200.00 on the fifteenth day of February, and a payment of $100.00 each month thereafter, beginning on the fifteenth day of April, 1926.

"`And it is further agreed, by the said parties of the second part, that neither they nor their legal representatives will underlet said premises, or any part thereof, or assign this lease without the written assent of the said party of the first part had and obtained thereto; that they will at all times during the term of this lease, at their own expense (except so far as may be hereinafter agreed to to the contrary), maintain and repair all the buildings and fences belonging to said premises, or which may at any time during said term be erected thereon; and the said premises and every part thereof, in as good repair as they shall be at the commencement of the term of this lease, will peaceably deliver up to the said party of the first part, her heirs, executors, administrators and assigns, at the termination of this lease, loss by fire, storms, or unavoidable accident, and ordinary wear and tear only excepted.

"`Any failure to pay each monthly rent when due and within three days after a demand for same shall produce a forfeiture of this lease, if so determined by said first party or successors.

"`In witness whereof, the said parties have hereunto, and to a duplicate copy hereof, set their hands the day and year first above written.

                                          her
                   "`[Signed]   Veronica   X  Adamec
                                          mark
                "`Witness to mark
                    "`[Signed] Thomas B. Pechan
                        "`[Signed] John J. Colligan
                        "`[Signed] Louis Buhlinger
                

"`State of Missouri, City of St. Louis—ss.

"`On this 15th day of February, 1926, before me personally appeared Veronica Adamec and John J. Colligan and Louis Buhlinger, to me known to be the persons described in and who executed the foregoing instrument, and acknowledged that they executed the same as their free act and deed.

"`In testimony whereof, I have hereunto set my hand and affixed my official seal, at my office in St. Louis, Mo., the day and year first above written.

                      "`[Signed] Leonard Hartman [Seal]
                                       "`Notary Public.
                

"`My term expires August 10th, 1926.

"`In consideration of one dollar, the receipt of which is hereby acknowledged, I, the undersigned hereby guarantee the payments as stipulated in this lease.'

"5. The insured building was not on the premises at the time the foregoing lease was executed. At the time the foregoing lease was executed there was on the site of the insured building a barn in bad repair, which plaintiff tore down, and on said lot erected the building which burned. The old barn was about fifteen (15) feet long, ten (10) feet wide and ten (10) feet high. The insured building which was constructed by the plaintiff to take the place of the barn was forty (40) feet long and eighteen (18) feet wide and 10 (10) feet high. It was a much better building than the building which was torn down. It was constructed by the plaintiff at a cost to him of approximately eight hundred ($800) dollars.

"6. The fire occurred on October 24th, 1927, at about 12:30 a.m., and was reported by the plaintiff to the defendant on October 25th, 1927. The insured building was completely destroyed by fire.

"7. On April 6th, 1928, a tender was made to the plaintiff by the defendant of the premium paid by him for the policy in suit, which was refused by the plaintiff. This tender has been renewed in this cause in this court, the premium together with interest being paid to the clerk as a tender for the plaintiff's benefit.

"8. No proof of loss has ever been filed by the plaintiff, the furnishing of proof of loss being waived by the defendant by its prompt denial of liability under the policy on the grounds that plaintiff had no insurable interest in the property either at the date the policy was issued or on the date of the fire, and even though he had an insurable interest in the property, there could be no recovery under the policy in view of the fact that the insured building was a building on ground not owned by the plaintiff in fee simple and the interest of the plaintiff in the insured building was not unconditional and sole ownership.

"9. The facts stipulated in the above and foregoing stipulation and agreed statement of facts may be offered in evidence by either party to this cause, subject to such objections as the other party may make at the time said facts, or any of them, are offered...