Campbell v. National Fire Ins. Co.
| Decision Date | 07 October 1924 |
| Docket Number | No. 18445.,18445. |
| Citation | 269 S.W. 645 |
| Parties | CAMPBELL v. NATIONAL FIRE INS. CO. OF HARTFORD, CONN. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Audrain County; Ernest S. Gantt, Judge.
"Not to be officially published."
Action by Andrew Campbell against the National Fire Insurance Company of Hartford, Conn. Judgment for plaintiff, and defendant appeals. Judgment affirmed on condition that remittitur be filed; otherwise reversed and remanded.
Leahy, Saunders & Walther, of St. Louis, A. O. Whitson, of Mexico, and L. Frank Ottofy, of St. Louis, for appellant.
Fry & Fry, of Mexico, for respondent.
This is an action on a theft insurance policy issued to Peyton Campbell, insuring his 1920 Cole Eight seven-passenger touring car to an amount not exceeding $3,650. The policy was issued July 30, 1920, by the defendant's agent at Mexico, Mo., where the insured then resided. The car was purchased new by the insured from the Cole Motor Company in St. Louis for $3,650, and the policy sued on was issued immediately after the purchase of the car. The insured afterwards removed to Memphis, Mo., where he engaged in business.
The evidence for plaintiff tends to show that on June 18, 1921, accompanied by his wife, insured drove the car to Rolla, Mo., arriving there about 4:30 in the afternoon; that about 9:30 o'clock that night he parked the car in front of the Baltimore Hotel, at which hotel he and his wife spent the night; that he saw the car again about 11:30 while he was sitting on the porch of the hotel with his wife; and that afterwards during the night the car was stolen.
The insured promptly gave defendant notice of the loss, and the claim was referred defendant to the Western Adjustment & Inspection Company of St. Louis for adjustment. On August 19th the insured made up proof of loss and forwarded it to the defendant by registered mail. The proof of was accompanied by a letter in which the insured claimed $3,500 in settlement of his loss. On September 29th the insured assigned his cause of action under the policy to the plaintiff. On September 13th the adjustment company wrote the insured, informing him of the receipt of information his Cole Eight was in the possession of the chief of police of Billings, Mont., and re questing the insured to assist in every way possible in its recovery. On September 20th a representative of the adjustment company called to see the insured about the adjustment of his loss. On October 26th the adjustment company, by letter of that date, advised the insured that under the terms of the policy it was his duty to co-operate with the company in the recovery of the stolen car, requested the insured to execute and return to the company the papers inclosed with the letter, to wit, a power of attorney au thorizing the company's representative at to take over the car, and an affidavit ownership and authorization to institute to gain possession of the car, and the insured that if he did not cooperate with the company he would violate the terms and conditions of the policy, and that he, and not the company, would be the thereby. The papers inclosed to the in sured with this letter reached the insured at Enid, Okl., where he then resided, and were executed by him and returned to the adjustment company at St. Louis on November 16th. automobile was held at Billings, Mont., under directions of the adjustment company until August, 1922, when it was brought back to Missouri by a representative of defend It was never returned or tendered to be returned to the insured. On December 14th an adjuster representing the adjustment company, replying to a letter from the in sured's attorneys who Were also attorneys plaintiff, inquiring as to when an adjustment of the loss would be made, advised that he was awaiting the arrival of the in sured to take up this subject. In January, 1922, the insured went to St. Louis and called at the office of the adjustment company and talked over with the adjuster the matter of the adjustment and settlement of loss. The adjuster told the insured that he was asking too much; that the amount he was asking was more than the car was worth. The insured then proposed to settle the loss for $2,500. The adjuster promised to submit the insured's proposition to the Chicago office of the defendant, and it arranged that the insured would call adjuster from Kansas City and let him know where the insured could be reached, and that the adjuster would then advise insured as to what the Chicago office would do about the adjustment. The insured went to Kansas City, and on January 5th, being unable to reach the adjuster in St. Louis by telephone, wired him from Kansas City, requesting him to wire his intentions relative to the adjustment of the loss to the insured at Enid, Okl. The adjuster never advised the insured what would be done about the adjustment of his claim, and on January 12th the insured wrote the adjuster from Enid, Okl., that unless he had a definite answer concerning the adjustment by January 14th suit would be brought. The adjuster did not answer, and on January 27th this suit was brought.
The cause was tried to a jury. There was a verdict for plaintiff for the sum of $2,993 including interest, and for the further sum of $300 as attorneys' fees, and judgment was given accordingly. From this judgment the defendant appeals.
The defendant charged that the insured entered into a conspiracy with one Charles H. Anderson and procured the said Anderson to take the insured's automobile from Rolla and to dispose of it so as to enable the in-Billings sured to make claim as for theft of the automobile and thereby defraud the defend'ant out of the amount of the insurance therewarned on. And the defendant now insists that the verdict of the jury is so contrary to the weight of the evidence upon this issue as to show passion, prejudice, and gross misconduct on the part of the jury; and that this court ought, therefore, to set the verdict aside.
To sustain this insistence defendant relies chiefly upon the testimony of Charles H. Anderson, produced as a witness on its behalf. Anderson testified that on the 16th, 17th, or 18th of June, 1921, he had a talk with the insured at Memphis, Mo., and that it was arranged between them that the insured should drive the car to Rolla and park it in front of the Baltimore Hotel, and that Anderson should take the car and get away with it, so as to enable insured to collect the insurance on the car; that pursuant to this arrangement Anderson took the car on the night on the 18th of June from in front of the hotel, drove it to Kansas City, left it there about three weeks, and then drove it to Billings, Mont., where he traded it off for a Saxon Sedan.
The insured denied that he had ever entered into any arrangement with Anderson, or that he had ever had any conversation with him at Memphis or any other place about taking the car from Rolla or from any other place:
It was shown that Anderson bore a bad reputation for truth and veracity in the community where he resided, and that he belonged to a gang of automobile thieves who had been operating in Scotland county for some time. It was further shown that he was arrested at Hannibal, Mo., by a sergeant detective of St. Louis, about a week before the trial of the case, and was taken by the detective to St. Louis and there incarcerated in jail; that while there in jail he confessed to the detective that he had taken the insured's car and disposed of it pursuant to an arrangement with the insured to defraud the company of the insurance on the policy, and that at the instance of the detective he signed an affidavit stating the details of the transaction; that thereupon he was taken by the detective to the office of defendant's attorneys to be interviewed; and that he was then released from imprisonment and subpoenaed to appear at the trial of this case as a witness on behalf of the defendant, and no criminal charge was preferred against him.
Though Anderson's testimony relating to the alleged conspiracy to defraud defendant was not without some corroboration, yet in view of the character of the witness as disclosed by the evidence, and the motive he had to give false testimony springing from a natural desire to escape prosecution and punishment for stealing the insured's automobile, the jury ought not to be convicted of passion, prejudice, or misconduct for declining to accept his version of the transaction.
The policy provides that it shall be void if the insured shall make any attempt to defraud defendant either before or after a loss, and defendant insists that the insured was conclusively convicted of attempting to defraud the defendant, for that by his letter of August 19, 1921, he claimed $3,500 in payment of his loss when he knew that a new car of the kind stolen could have been purchased for $2,795, and that the court should have so declared as a matter of law. There is no evidence that insured knew that a new car could have been purchased for $2,795. In fact, the evidence is far from conclusive that such a car could have been purchased for that sum at the time the insured's car was stolen. The issue was clearly for the jury. They resolved it against the defendant, and that is an end of the matter. State ex rel. v. Farrington, 272 Mo. 157, loc. cit. 162, 197 S. W. 912; City of Charleston v. Coker, 195 Mo. App. 159, loc. cit. 170, 184 S. W. 1181; Hall v. Western Underwriters' Ass'n, 106 Mo. App. 476, loc. cit. 478, 81 S. W. 227; Schulter v. Merchants' Mutual Ins. Co., 62 Mo. 236, loc. cit. 238; Marion v. Great Republic Ins. Co., 35 Mo. 148.
It is provided in the policy that a failure on the part of the insured to make proof of loss within 60 days after the date of loss shall render his claim for such loss null and void. The insured failed to make proof of loss within 60 days after the date of the loss, and such failure is set up as a...
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