Caldwell v. City of New York Ins. Co.

• Decision Date: 04 December 1922
• Docket Number: No. 14550.,14550.
• Citation: 245 S.W. 602
• Parties: CALDWELL v. CITY OF NEW YORK INS. CO.
• Court: Missouri Court of Appeals

245 S.W. 602

CALDWELL v. CITY OF NEW YORK INS. CO.

No. 14550.

Kansas City Court of Appeals. Missouri.

December 4, 1922.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

"Not to be officially Published.."

Action by Florence Caldwell against the City of New York Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hogsett & Boyle, of Kansas City, and W. D. Steele, of Sedalia, for appellant.

Hoffman & Hoffman and R. S. Robertson, all of Sedalia, for respondent.

BLAND, J.

This Is an action upon a policy of fire insurance in the sum of $600. Plaintiff recovered a verdict and judgment in the sum of $500, and defendant has appealed.

The policy covered an automobile described as a secondhand seven Passenger Studebaker touring car, costing $800, No. 611282, 1918 model. The policy, dated June 20, 1921, insured the car for one year from that date. On July 17, 1921, the automobile was totally destroyed by fire. Defendant refused to nay the insurance resulting in this suit.

Defendant filed the following answer:

"Now comes the above-named defendant by its attorney, leave of court being first had, and for answer to plaintiff's petition herein admits that it is a corporation, but denies each and every other allegation contained in said petition, and defendant, further answering, denies that defendant is liable to plaintiff in any sum whatever under said alleged policy of insurance sued on in this case. And for further answer defendant states that at the time the alleged insurance was written and placed upon said automobile said automobile at said time had a chattel mortgage against the same placed thereon by the plaintiff in this suit, and then and there, concealed said fact from the defendant herein for the purpose of cheating and defrauding this defendant.

"Defendant further states that there was prior insurance on said automobile at the time said alleged insurance policy was issued by defendant, and that after said automobile was destroyed by fire as alleged in plaintiff's petition defendant received a large sum of insurance on said automobile from another insurance company. Defendant states that the fact there was prior insurance on said automobile was kept a secret from defendant for the purpose of cheating and defrauding this defendant. Defendant states that at the time of said alleged insurance defendant did not know of the aforesaid mortgage being against said automobile nor of any prior insurance on said automobile. Defendant states that by reason of the fraudulent acts of the plaintiff aforesaid under the terms of said alleged insurance policy that the same is null and void, and that plaintiff has no cause of action against this defendant."

The answer, in addition to the general denial, attempts to set up fraud in the procurement of the policy. It is apparent that it is not sufficient to plead fraud. Christian v. Ins. Co., 143 Mo. 460, 45 S. W. 268; Summers v. Ins. Co., 90 Mo. App. 691. Aside from this, the pleading is bad for the reason that it attempts to couple with a general denial matter of confession and avoidance. Brown v. Emerson, 155 Mo. App. 459, 134 S. W. 1108. Defendant's attorney, who is not the present counsel for defendant, at the trial stated that it was denied that the insurance was issued.

Notwithstanding the fact that, if anything was attempted to be pleaded in the answer in the way of an affirmative defense, it was fraud generally without reference to any alleged breach of warranty, the court, over the objection of plaintiff, allowed defendant to prove breaches of various warranties contained in the policy, which, of course, if relied upon, should have been pleaded. 2 Cooley's Brief on Insurance, p. 1176. A breach of a warranty contained in the policy against incumbrances by liens or mortgages was proven. The evidence shows that there was a mortgage on the automobile at the time of its insurance. There was another warranty against other insurance, and it was proved that there had been at the time of the issuance of the policy in suit other insurance taken out with the knowledge of plaintiff by the holder of the mortgage to protect his interest. There was also a warranty as to the description of the automobile, and the automobile was shown to have been model 1916 instead of 1918, as described in the policy it was shown that defendant did not know of the breaches of these warranties until after the fire. There is no pleading or evidence that defendant, upon discovery of the breaches of the warranties, tendered back the premiums.

Defendant complains of the giving of plaintiff's instructions Nos. 1, 2, 3, and 4, providing that, if they found that plaintiff was the owner of the car in question, that defendant issued the policy of insurance on the car, that the policy was in force at the time of the loss, and that the premiums were paid, they should find for plaintiff; that the fact that there was a mortgage on the car or other insurance had been taken out or that the car was described by a wrong number or model were not defenses to the suit. Defendant further complains that the court erred in refusing to instruct the jury, as requested by it, that plaintiff was not entitled to recover; also that, if she made any false statements concerning the automobile at the time she Obtained the insurance, or at that time there was prior insurance upon the automobile or a mortgage on it, and defendant did not know of these things, their verdict should be for defendant.

Defendant in its brief in arguing these points insists that plaintiff was guilty of the breaches of warranties in reference to the matters heretofore mentioned,. and does not contend that there was any misrepresentation aside from the breaches of such warrantles. It is also contended that, as the number of the car was 611306, instead of 611282, plaintiff was not entitled to recover in view of the general denial filed—a point that we will hereinafter discuss. However, it is apparent that there was no issue in the case involving any breach of warranty.

Defendant in its reply brief urges that the case was tried on the theory that the answer was sufficient to raise the defense of the breaches of the warranties, and that the allegation of fraud in the answer may be regarded as surplusage. We might so regard such allegation if it were not apparent on the face of the answer that it was attempted to set up a defense founded on fraud. The record does not conclusively show that this case was tried upon the theory that the matter of the breaches of warranties was in issue. Plaintiff objected to the showing of a chattel mortgage on the ground that "under the pleadings it is not responsible and wholly immaterial and discloses no defense whatever in the pleadings; * * * under the pleadings it constitutes no defense whatever; * * * it throws no light on the issues in this case or the issues as formed now; it is no defense." When the other insurance was shown, objection was made "for the same reason." The matter of the car being model 1916 instead of 1918 came out only incidentally in the examination of the agent who wrote the other insurance on the car. He testified that the model of the car on which he wrote the insurance was model 1016. It seems to be assumed in the record that this was the same car that was insured by defendant. Plaintiff's objections at the trial and her instructions would indicate that she was not trying the case on the theory that the matter of breaches of the warranties was in issue. In this connection defendant makes much of the fact that the policy of insurance containing the warranties was introduced in evidence without objection on plaintiff's part; plaintiff's counsel saying that he had no objection whatever to its introduction. The policy was competent on other issues, but, at any rate, in view of the objections made to the proof of these matters, how can we say the record shows that the case was tried by plaintiff on the theory that they were in issue? In addition to this plaintiff's instructions would tend to show that she did not regard as in the case the matter of the breach of the warranties.

It is apparent that under the issues there was no defense to this cause of action, and plaintiff's instructions were properly given and those of defendant properly refused, except for the fact that the number of the car was not properly given in the policy of insurance. The facts in relation to this matter are that plaintiff, an ignorant negro woman, called up defendant's agent and told him that she wanted insurance upon her car and asked how much insurance she could take out, and the agent said. $500. Afterwards she sent her son with the car to the agent's office for the purpose of having the agent examine it. The son left the car downstairs and went up to the agent's office and told him that he had the car and asked him to look at it. The agent was writing and asked the son, "How was the car?" and the son replied, "All right." The agent continued writing. The son remained there for about 13 minutes and then left, having paid to the agent part of the premium. The premium was afterwards fully paid. This was all plaintiff had to do with the issuance of the policy. The agent took upon himself to acquire the information for the filling cut of the policy, including the model of the car, from a stenographer of one Hickerson. Plaintiff purchased the car, a used one, from Hickerson, who held the chattel mortgage upon it. The agent did not testify, but Hickerson testified that the agent asked his bookkeeper for the number of the car?" and she gave the agent the number of the Studebaker car in their possession instead of the one that had been sold, and that it was...