Cole v. Kansas City Fire & Marine Ins. Co.

• Decision Date: 15 January 1953
• Docket Number: No. 7099,7099
• Citation: 254 S.W.2d 304
• Court: Missouri Court of Appeals
• Parties: COLE v. KANSAS CITY FIRE & MARINE INS. CO.

Page 304

254 S.W.2d 304

COLE v. KANSAS CITY FIRE & MARINE INS. CO.

No. 7099.

Springfield Court of Appeals, Missouri.

Jan. 15, 1953.

Seiler, Blanchard & Van Fleet, Joplin, for appellant.

C. W. Crossan, Kansas City, Paul E. Carver, Neosho, for respondent.

VANDEVENTER, Presiding Judge.

Plaintiff recovered a judgment on an insurance policy for loss of an outboard motor and from that judgment, the defendant insurance company has appealed.

There is not much dispute in the evidence. Plaintiff owned an outboard motor at the time of the loss by theft. It had been for several months, and at the time it was stolen, in the possession of Paul Carver, whose address was 307 W. North Street, Neosho, Missouri. Plaintiff's residence was 203 Rockhill Road, Neosho. The outboard motor was taken to the residence of Mr. Carver in April, 1950, and was missed from his garage at his residence the following November.

The plaintiff procured the insurance policy through the J. J. Flynn Agency at Parsons, Kansas. Plaintiff had formerly lived at Parsons, Kansas, had procured other policies from the same agency, had two other losses of which he had orally notified Mr. Flynn, and they had been paid by making such claim through the Flynn Agency. Plaintiff testified he was preparing to make a trip abroad, that he called Mr. Flynn of the J. J. Flynn Agency and had a conversation with him. His testimony was:

'Q. Now then did you notify the company in any way about the fact that you were leaving and storing some of your property while you were gone? A. I did. I called Mr. Flynn and told him I would be gone two or two and a half months and I wanted to know about the insurance because I had a boat and another motor at Norfork Lake and asked what I must do about it, should I get some rider on there or something, and he said, 'No'. He said, 'Absolutely not. It isn't necessary. It's insured wherever it is.' * * *

'Q. Is that the extent of your conversation before you went to Europe? A. Sure, except just visiting.'

Upon his return and upon discovery of his loss, he notified Mr. Flynn by letter and in due time, an adjuster came to see him.

The policy upon its face gave the assured's address as '203 Rockhill Road, Neosho, Missouri,' and stated:

'This Policy Is Made and Accepted Subject to the Foregoing Stipulations and Conditions, and to the Conditions Printed on the Back Hereof, which are hereby specially referred to and made a part of this policy, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto; and no officer, agent or other representative of this Company shall have power to waive or be deemed to have waived any provision or condition of this policy unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the assured unless so written or attached.'

Four times on the face of the policy there is a specific warning of, and reference to, provisions of the policy to follow. The policy, under the heading 'Exclusions' had this provision:

'6. This policy does not insure * * *

'(b) animals; automobiles, motorcycles, aircraft, boats or other conveyances (except bicycles, tricycles, baby carriages, invalid chairs and similar conveniences) or their equipment or furnishings except when removed therefrom and actually on the premises of residences of the Assured; * * *.'

Under the heading 'Limitations' appears the following:

'5. (a) As respects unscheduled personal property ordinarily situated throughout the year at residences other than the principal residence of the Assured, the Company shall not be liable in excess of ten percent of the amount of insurance set forth in Item (a) Paragraph 3.'

Item (a) Paragraph 3 was:

'3. Insurance attaches only with respect to those items in this paragraph for which an amount is shown and only for such amount.

Item (a)

Amount $4,800.00

On unscheduled personal property, except as hereinafter provided.'- The question is, was the property stolen covered by the policy? The trial court decided for plaintiff, rendered judgment for $175, the value of the motor and $50 for attorneys' fees, because of vexatious refusal to pay.

An insurance policy is a written contract between insurer and insured and each is bound by its terms. Central Surety & Insurance Corp. v. New Amsterdam Casualty Co., 359 Mo. 430, 222 S.W.2d 76; Warren v. Royal Exchange Assur. Co., Mo.App., 205 S.W.2d 744.

If the language used is plain and unambiguous, there is no room for construction and its terms must be accepted as written. Central Surety & Insurance Corp. v. New Amsterdam Casualty Co., supra; Freese v. St. Paul Mercury Indemnity Co., Mo.App., 252 S.W.2d 653; Grover v. Hartford Accident & Indemnity Co., 227 Mo.App. 45, 51 S.W.2d 210; Bowdon v. Metropolitan Life Ins. Co., 227 Mo.App. 710, 59 S.W.2d 787; Adams v. Metropolitan Life Ins. Co., 228 Mo.App. 915, 74 S.W.2d 899; Toler v. Atlantic Life Ins. Co., Mo.App., 248 S.W.2d 53.

Paragraph 6(b) as far as applying to the loss here involved plainly states that the motor was not covered by the policy except when removed from the boat and 'actually on the premises of residences of assured; * * *.' The uncontroverted evidence in this case shows that while the motor was removed from the boat, it was not either at the principal residence or any other residence of the assured. The insurance company had a right to limit their liability to property to a certain place. It was not an unreasonable requirement. Grover...