Cass v. Pacific Fire Ins. Co.

• Decision Date: 07 November 1949
• Docket Number: No. 21190.,21190.
• Parties: CASS et al. v. PACIFIC FIRE INS. CO.
• Court: Missouri Court of Appeals

224 S.W.2d 405

CASS et al. v. PACIFIC FIRE INS. CO.

No. 21190.

Kansas City Court of Appeals. Missouri.

November 7, 1949.

Not to be published in State Reports.

Henry Depping, Alvin C. Trippe, and Hogsett, Trippe, Depping, Houts & James, Kansas City, for appellant.

Dwight Roberts, Ira B. Burns, Kansas City, for respondents.

DEW, Presiding Judge.

This is an action by the plaintiffs, husband and wife, to recover from the defendant loss and damage to personal property and effects by fire under a fire insurance policy. A verdict and judgment were rendered in favor of the plaintiffs in the sum of $1750, plus $439.84 interest, $175 penalty, and $500 attorney's fees, making a total judgment of $2,864.84. The defendant has appealed.

The petition alleged the issuance of the policy, its contents, a removal permit attached, the effectiveness of the policy on January 16, 1944, the date of the fire, the ownership of the property lost or damaged by the fire, and its value of $1750. It was further alleged that the plaintiffs had fulfilled all of the conditions of the policy on their part and had given notice and proof of the fire and loss, as required thereby, and despite repeated demands for payment, the defendant had unreasonably, unlawfully and vexatiously refused and failed to pay, whereby plaintiffs were compelled to employ counsel to institute this action, and to suffer the additional damage of $175 by such delay, and to expend $500 for counsel fees. The plaintiffs prayed for judgment for $1750, with interest thereon at 6 percent from April 10, 1944, plus the additional sum of $175 as damages for vexatious delay, and for attorney's fees of $500 incurred.

The answer admits the issuance and effectiveness of the policy but generally denies all other allegations of the petition. Defendant further alleged that plaintiff Raymond F. Cass deliberately and intentionally caused the fire for the purpose of both plaintiffs collecting the insurance and defrauding the defendant, thereby rendering the policy of insurance void before and at the time of the fire, and that the plaintiffs failed within 60 days after the fire, as required by the policy, to render a statement regarding the time and origin of the fire, the interests of the plaintiffs in the property destroyed or damaged, the cash value thereof, and the amount of such loss. It alleged that plaintiffs furnished a sworn paper purporting to be a proof of loss, signed by plaintiff Raymond F. Cass, and that the same was fraudulent and false in that it stated the fire did not originate by any act, design or procurement on the part of the affiant, and that there were no articles mentioned in the proof of loss except such as were in the building and damaged by the fire, and that no property was saved or had been concealed. The answer further alleged that the policy required the insured to submit to examinations under oath pertaining to any such loss, and that plaintiffs, although requested to appear therefor, failed and refused to appear for such examination.

The plaintiffs, with their two small children, were living at the premises in question in Kansas City, Missouri. The building was a duplex and the plaintiffs occupied the second floor. The insurance policy had originally been written to cover the property at a former address and, by rider attached, had been changed to cover the property located in the premises first mentioned. The issuance of the policy and its effectiveness as of the date of the fire are not in dispute.

The plaintiff Raymond F. Cass testified that after dinner at his home on Saturday evening, January 15, 1944, he telephoned a friend, a Mr. Hersh, requesting permission that the plaintiff bring some things to store in Mr. Hersh's garage. The plaintiffs had no garage. Permission being obtained, the plaintiff Raymond F. Cass moved an auto trunk and several pasteboard boxes containing such articles as overalls, linen, dishes, and used clothes of value not to exceed $20 to the Hersh garage. He said he had previously kept things in the basement or the garage of the above Mr. Hersh, such as canned fruit and other articles for which plaintiffs had no room for storage in their various places of residence.

Plaintiff Raymond F. Cass stated that while at the home of Mr. Hersh he visited with that family until about 11:00 o'clock that evening. From there he returned to his home not far distant. He noticed nothing unusual at that time. After sitting in the living room a short while reading or listening to the radio, he heard a noise. He investigated the kitchen and back porch and, finding nothing wrong, he returned to the living room. He then smelled smoke and, upon investigation, found that it was coming from the open closet door in the children's bedroom. In the ceiling of the closet there was a trap door leading to the attic. He removed the lid and found the attic was on fire. He turned on the lights, awakened his wife and together they quickly got the children up and carried them out of the apartment and into the plaintiffs' car, which was parked in front of the residence. While his wife was dressing the children in the car he ran to the house of a next door neighbor and called the fire department. The firemen soon arrived and shortly thereafter the plaintiffs called a cab and Mrs. Cass and the children were taken to the home of her husband's sister for the night. Later, Mrs. Cass and the children moved to temporary quarters in Kansas City, Kansas, and Mr. Cass obtained a room in the Royce Hotel in Kansas City, Missouri. The next day, Sunday, both returned to the apartment and removed some clothing and other effects not damaged. The fire was extinguished in a few hours. On the following Monday morning the plaintiffs prepared a list of the items destroyed or damaged in the fire, and gave it to Mr. Miner, an adjuster for the defendant.

In the course of his direct testimony Mr. Cass testified that shortly after his graduation from high school he was arrested for setting fire to his home in Kansas and plead guilty to fourth degree arson, was committed to the Hutchinson, Kansas reformatory therefor, served eleven months of the sentence and was then paroled. On cross-examination he admitted that after the fire in question he was asked by a fire investigator if he had also at one time been convicted of stealing tools and wood. He answered: "He asked me those questions. I said, `No, sir, I have not been convicted of it'".

Raymond F. Cass further testified that he received a letter dated January 26, 1944, from Mr. Miner, requesting him to bring the list of lost or damaged articles to Mr. Miner's office; that he prepared such a list which totaled $1762, and delivered it to Mr. Miner. After going over the list, item by item, he testified that Mr. Miner agreed to settle the loss for $1408, and a sworn proof of loss in that amount was made by Mr. Cass. Mr. Cass testified that after signing the sworn statement, Mr. Miner told him that he did not intend to settle the claim for any amount, and that "We are going to put you in the penitentiary. In fact, I got some men waiting in the hall to pick you up". Mr. Cass testified that as he left the hall he was placed under arrest by the police.

In further reference to the fire plaintiff Raymond F. Cass testified that when they moved into the apartment there was a burned place under the kitchen stove. He smelled no odor of gasoline or oil before discovering the fire. He knew that there was a floor mop in the kitchen but he smelled no odor from it. He had a five gallon gasoline can on the front porch, but it was empty. He explained that he had brought gasoline in it from his father's farm during the period that gasoline rations were in effect. He said his wife had helped him pack the small automobile trunk and the several boxes which had been taken over to Mr. Hersh's garage the evening of the fire. He said that when he received the letter from the attorney, asking him to submit to an examination under oath that he was informed that the attorney did not wish to see him on the date stated in the attorney's letter. Mrs. Cass had received a similar letter, but could not leave the children.

G. A. Hersh testified for the plaintiffs as to the bringing of the boxes to his garage for storage by Mr. Cass and that he was present later when they were opened in the presence of Mr. Cass and detectives. He corroborated the plaintiffs in a general way as to the slight value of the contents.

Mrs. Cass told of packing the trunk and cartons with articles which her husband, on the evening of and prior to the fire took to the Hersh garage for storage. She described the articles as consisting of "old things, clothes to make over for the children. There was an old set of silver, as it was brought out. I had my regular silver; my school diploma was in the box of things, and I had some old pictures. I never owned any handpainted things in my life. I mean, dishes, and there may have been some children's shoes that they had outgrown. I don't know about that. It was mostly old things too good to throw away. We didn't have a place to put them". She said the apartment was originally provided with gas lights, and later electric wires were put through the gas pipes. The fixtures were ceiling fixtures. The apartment, she said, always smoked because the hot air furnace always smoked. On the night of the fire she and the children had gone to sleep and she was awakened by her husband asking if she smelled smoke. She described how they awoke the children, grabbed them up with some clothing and ran out to the car in front of the apartment. She corroborated her husband as to going to the neighbor's house, calling the fire department, calling a cab and moving to his sister's home for the night, and later to her mother's home. She went back to the apartment the day after the fire and "everything was in a terrible mess". She helped make up the list of articles...