Byrd v. Bankers' & Shippers' Ins. Co.
| Decision Date | 20 May 1930 |
| Citation | 28 S.W.2d 423,224 Mo.App. 451 |
| Parties | W. H. BYRD, RESPONDENT, v. BANKERS AND SHIPPERS INSURANCE COMPANY, APPELLANT. [*] |
| Court | Missouri Court of Appeals |
Rehearing Denied 224 Mo.App. 451 at 454.
Appeal from Circuit Court of Dunklin County.--Hon. W. S.C. Walker Judge.
AFFIRMED (on condition).
Motion rehearing overruled.
Henson & Woody for appellant.
(1) There was a fatal defect of parties plaintiff. Sec. 1159, R S. 1919; Muldrow v. Railroad, 62 Mo.App. 431; Simpson v. Brantley, 142 Mo.App. 490; Hoppock v Gaines, 284 S.W. 191. (2) Plaintiff's instruction No. 1, is prejudicially erroneous, because it authorizes jury to find that the automobile in question was wrongfully taken by National Bond & Investment Company when there is no evidence in case upon which such finding might be predicated. Kuhlman v. Transit Co., 307 Mo. 707, 271 S.W. 797; State v. Ellison, 270 Mo. 645, 195 S.W. 722; King v. Missouri Dairy Co., 187 S.W. 284; Hoyt v. Stock Yards Co., 188 S.W. 106; Stahlberg v. Brandes, 299 S.W. 836; Adams v. Kendrick, 11 S.W.2d 16, 25; Hawes v. Insurance Co., 7 S.W.2d 479; Watson v. Mining Co., 5 S.W.2d 122; Hodges v. Insurance Co., 6 S.W.2d 72; Holloway v. Barnes Groc. Co., 15 S.W.2d 917.
McKay & McKay for appellant.
(1) A defect of parties, plaintiff or defendant, will be deemed waived unless taken advantage of by demurrer when such defect appears on face of petition, or by answer when it does so appear. Kerr v. Bell, 44 Mo. 120; Scott-Force Hat Co. v. Holmes, 127 Mo. 392; Rideout v. Burkhardt, 255 Mo. 116; Sales v. Funk, 175 Mo.App. 500. (2) Plaintiff's instruction No. 1 is not erroneous nor prejudicial but follows the petition, as well as facts proved in evidence. Barrett v. Timberlake, 57 Mo. 501; Gorger v. Langenbury, 42 Mo.App. 7; Zeltman v. Bank, 67 Mo.App. 627.
This is an action on a theft insurance policy covering an automobile. The petition charges that on October 22, 1926, the defendant insurance company issued its open policy of insurance made payable to "The National Bond & Investment Company for the benefit of the several parties in interest" covering a certain Ford Roadster which provided, among other things, that the insurance company would pay ninety per cent of the factory list price of such motor vehicle, not including accessories and extra equipment in the event of loss from theft; that the list price of said car was $ 360, and ninety per cent thereof was $ 324. It is further alleged that the car was stolen on the 11th day of November, 1926; that the car was located later on the 20th day of December, 1926; that plaintiff demanded its return of the defendant but it was not returned; that plaintiff demanded payment for said car which was not made; that defendant wrongfully delivered the car to the National Bond & Investment Company; that said car was reasonably worth $ 324, for which judgment was prayed. Defendant filed an answer setting up as a defense that the policy was issued to the National Bond & Investment Company, which held plaintiff's note and mortgage on the car, for the primary purpose of protecting the interest of said Investment Company in the car and that plaintiff had no interest therein until after the debt due said Investment Company had been fully paid; that plaintiff was in default in installment payments due on the car; that after said automobile was recovered and "before same could be returned to plaintiff by defendant, said National Bond & Investment Company took said automobile from the possession of the defendant under and by virtue of the chattel mortgage given by plaintiff on said automobile to secure the payment of the installment note etc." Upon the issues thus raised trial was had to a jury, which resulted in a verdict for plaintiff in the sum of $ 324, the full amount claimed. Defendant has appealed.
The first question raised in defendant's assignment of errors is that there was a fatal defect of parties plaintiff. We think this point was waived by defendant. The defect, if any, clearly appears on the face of the petition, and, under our code, should have been taken advantage of by demurrer. [Sec. 1226, R. S. 1919.] Such defect is waived when defendant fails to demur but joins issue by answer. [Flint v. Sebastian, 300 S.W. 798, 317 Mo. 1344; Rideout v. Burkhardt, 255 Mo. 116, 164 S.W. 506; Kerr v. Bell, 44 Mo. 120.]
But in any event, plaintiff could maintain this action in his own name. Until the mortgage was paid he occupied the position of trustee of an express trust for the benefit of the Indemnity Company and recovery by him would constitute a bar to any further suit on the policy. [Anthony v. Insurance Co., 48 Mo.App. 65; Still v. Ins. Co., 185 Mo.App. 550, 558.]
It is unnecessary to set forth more than a mere summary of the facts, as to which plaintiff and defendant are practically in agreement. Plaintiff had paid but one installment on the car and was in default. There can be no doubt the National Bond & Investment Company had the right to demand the possession of the car, under their mortgage and defendant, in so far as this record shows, was guilty of no wrong in delivering possession to such Investment Company. The evidence indicates the car was thereafter sold, under foreclosure sale, and brought the sum of $ 241 and that the net proceeds was $ 196.31. There was also evidence that the car was worth the full list price at the time it was stolen and, we think, defendant's original liability after the theft was therefore the full amount of the policy, to-wit: $ 324.
By plaintiff's instructions the jury was authorized to render a verdict for this full amount, with no reduction on account of the money received from the sale of the car and applied to plaintiff's debt. Under no theory was plaintiff entitled to recover the full amount of the policy and leave out of consideration the reasonable value of the car at the time it was taken from defendant. Without further discussing the instructions, it is our opinion that the measure of damages should be...
To continue reading
Request your trial