Burns v. Ohio Farmers' Ins. Co.
| Decision Date | 26 June 1920 |
| Docket Number | No. 13657.,13657. |
| Parties | BURNS v. OHIO FARMERS' INS. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Thorns H. Buckner, Judge.
"Not to be officially published."
Suit by Margaret S. Burns against the Ohio Farmers' Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Barnett & Weatherby, of Kansas City, for appellant.
Smith & Creason, of Kansas City, for respondent.
This is a suit by the mortgagee upon a fire insurance policy in the sum of $2,000. There was a fire resulting in the total loss of the property insured. A jury was waived, and the court rendered judgment for the plaintiff in the amount of the policy, with interest, together with $200 as penalty and attorney's fees. Defendant has appealed.
The facts in this case are practically the same as those in the case of Burns v. Ins. Co. of the State of Pennsylvania, 224 S. W. 98, decided at this sitting, but not yet [officially] reported. The points made are the same except as to the point in reference to the construction to be put on the provisions of the mortgage clause. That clause, in the policy in the case at bar contained somewhat different language than that found in the policy in the other case. The policy in this case contained the same provision in the body of the policy as that found in the policy in the other case to the effect that if there was a mortgagee "the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached, or appended hereto." In this case the mortgage clause itself also contained a provision that the insurance "shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured." The mortgage clause, however, contained a provision not in the other policy as follows:
"Except as herein specifically waived, this agreement is subject to all the stipulations and conditions of the policy to which it is attached."
Defendant claims that by reason of this provision the terms of the policy itself apply to the mortgagee except where specifically waived in the mortgage clause. To use defendant's own language:
"Now, the situation is this: By a general policy provision the terms of the policy by which the insured owner could be defeated of recovery are to apply to the mortgagee only in manner as written upon or appended to the policy; and written upon and appended to the policy as a part of the mortgage clause itself is the provision that all of the policy provisions shall...
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