Copeland v. American Central Insurance Co.
| Decision Date | 08 June 1915 |
| Citation | 177 S.W. 820,191 Mo.App. 435 |
| Parties | HOUSTON E. COPELAND, Appellant, v. AMERICAN CENTRAL INSURANCE COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.
AFFIRMED AND REMANDED.
Order affirmed and cause remanded.
H. A. & C. R. Hamilton, Thomas J. Rowe and Seneca C. Taylor for appellant.
(1) Remarks made by the trial judge are not ground for granting a new trial, unless they are made improperly and are of a character to prejudice the jury against one of the parties. State v. Teeters, 239 Mo. 475; Hutchinson v Richmond Safety Gate Co., 247 Mo. 71; Farrar v Railroad, 249 Mo. 210; Landers v. Railroad, 134 Mo.App. 80; Tuck v. Traction Co., 140 Mo.App. 335; Steltemeier v. Barrett, 145 Mo.App. 534. (2) There is no substantial evidence in the record to sustain the affirmative defense set forth in the answer and a verdict for defendant would be unsupported by proof. State v Jones, 106 Mo. 302; State v. Morney, 196 Mo. 43; Spencer v. Ins. Co., 79 Mo.App. 213; Spiro v. Transit Co., 102 Mo.App. 250; American Ins. Co. v. Smith, 73 Mo. 368; Glover v. Ins. Co., 130 Mo. 173; Monaghan v. Ins. Co., 53 Mich. 238; Decker v. Ins. Co., 66 Me. 406; Boyd v. Glucklich, 116 F. 131; Pauley v. S. G. & L. Co., 131 N.Y. 90; Yaggle v. Allen, 48 N.Y.S. 827; Haywood v. State, 43 So. 614.
George L. Edwards and A. H. Roudebush for respondents.
(1) The conduct of the trial judge fully justified him in granting a new trial. Simon v. State, 117 S.W. 143; Hutchinson v. Richmond Safety Gate Co. et al., 247 Mo. 71; Wright v. Richmond, 21 Mo.App. 76, 81; Dreyfus v. Railroad, 124 Mo.App. 594; I Thompson on Trials (2nd Ed), section 219; Hinzman v. Railroad, 182 Mo. 611. (2) Appellate courts will lean toward affirming rather than reversing orders granting new trials. Rickroad v. Martin, 43 Mo.App. 597; Parker v. Britton, 133 Mo.App. 270; Schmidt v. Railroad, 149 Mo. 269. (3) An appellate court may, in passing on the weight of the evidence, consider any points made in motion for a new trial, though not assigned by the trial judge as grounds for granting a new trial. Emmons v. Quade, 176 Mo. 22; Dale v. Golden Rod Mining Co., 110 Mo.App. 317; Chandler v. Gloyd, 217 Mo. 394; Hawman v. McLean, 139 Mo.App. 429; State ex rel. v. Thomas, 245 Mo. 65; Roney v. Organ, 176 Mo.App. 234. (4) Where a trial judge grants a new trial on the ground of his own conduct, his order will be treated by the appellate court as a matter of discretion, and not disturbed. Septowski v. St. Louis Transit Co., 108 Mo.App. 307. (5) Fraud can be established by circumstantial evidence and the weight of the evidence in this case is against the plaintiff. Cooley on Torts, 475; St. Francis Mill Co. v. Sugg, 206 Mo. l. c. 155.
--This is an action to recover the amount of a draft drawn by defendant upon itself, payable to one Blockburger and one Taylor, trustee, and by them indorsed and delivered to plaintiff, in payment of a claim upon a policy of fire insurance issued by defendant; which draft defendant thereafter declined to pay. This is the second appearance of the case in this court. The first trial resulted in a judgment for the defendant which was reversed by this court, on the former appeal, for error in giving an instruction. [See Copeland v. Insurance Co., 158 Mo.App. 338, 138 S.W. 557.] Upon the second trial, before the court and a jury, there was a verdict for plaintiff, but the court set it aside and granted defendant a new trial. From the order granting a new trial plaintiff prosecutes this appeal.
The pleadings upon which the second trial was had are the same as set out in substance in the opinion of this court on the former appeal. When the case was called for trial defendant, in open court, admitted liability on the second count of the petition, upon which plaintiff had elected to stand, for the amount therein demanded, unless it establish its affirmative defense set up in the answer. This affirmative defense is that long prior to the issuance of the policy of insurance, and at all of the times referred to in the answer, plaintiff and others had combined and conspired together for the purpose of acquiring properties and equities in properties with a view to procuring fire insurance thereon, grossly in excess of the value thereof, causing the same to be destroyed by fire and collecting insurance thereupon; that pursuant to such combination and conspiracy, plaintiff and others acquired the property described in the policy issued by defendant, procured fire insurance thereon, including the policy issued by defendant, grossly in excess of the value of the property, and caused the same to be destroyed by fire. And defendant averred that it had issued the above mentioned draft in ignorance of the matters so pleaded in defense.
The defendant, to sustain the burden cast upon it to establish its affirmative defense, called plaintiff as the first witness, later calling Blockburger and one Dunaway, these being the three persons chiefly concerned in the transaction leading up to the procuring of the policy of insurance issued by defendant. The defense rests in large measure upon the testimony of these adverse witnesses who, as defendant contends, conspired to fraudulently obtain and did obtain insurance upon the property in question, grossly in excess of its value, and caused it to be destroyed by fire; though other evidence was adduced by defendant to support the averments of its answer.
It appears that on or about March 4, 1909, Dunaway acquired a piece of real property in St. Louis county, perhaps a mile or more from the corporate limits of Ferguson, known as the January homestead. The property consisted of approximately twenty-seven acres of land with a large residence thereon, which appears to have been originally a costly and handsome structure, but which was then old and out of repair. It had not been occupied for some years, except by a caretaker. Dunaway purchased the property through the Mississippi Valley Trust Company of St. Louis, a corporation, the agent of the owners thereof, for the sum of $ 13,500. He represented himself as the agent of one Guy S. Sturges to whom he caused the property to be conveyed. Sturges, however, was but a "straw man." At the time, the property was encumbered by a first deed of trust for $ 8000. There was also a second deed of trust of record thereon for $ 7000, but it appears that this did not represent an actual loan upon the property and was controlled by the owners. Dunaway paid in cash the difference between the amount of the first deed of trust and the said purchase price, less certain commissions allowed him in the transaction.
On March 19, 1909, Dunaway caused the title to the property to be transferred by Sturges, by warranty deed, to George O. Blockburger, the consideration expressed in the deed being $ 25,000. In the meantime a deed of trust had been executed to one Frank X. Hackman to secure a principle note of $ 15,000 and interest notes. Dunaway testified that he had arranged with Hackman to make such loan before he had completed his purchase of property, telling Hackman that it was to take up an encumbrance of like amount then on the property. It is said, however, that Hackman found himself unable to make a loan to this extent and that in lieu thereof he advanced $ 7,000, leaving the first deed of trust for $ 8,000 on the property, his deed of trust becoming a second lien. Plaintiff, Dunaway and Blockburger, by their testimony, seek to make it appear that Blockburger purchased the property from Dunaway in good faith, for the price of $ 25,000, paying in cash $ 10,000 for the equity above the original mortgage for $ 8,000 and the Hackman mortgage for $ 7,000; Blockburger procuring from plaintiff, Copeland, $ 5,000 secured by a third deed of trust upon the property, to aid him in making the payment of this $ 10,000.
Plaintiff, Dunaway and Blockburger claim to have met at plaintiff's residence in the city of St. Louis where Blockburger's purchase was consummated. According to their version of the transaction, some paper showing title in Sturges was shown plaintiff, together with a warranty deed from Sturges to Blockburger; plaintiff paid over to Blockburger $ 5,000 in currency, receiving a third deed of trust upon the property, though he says that his previous understanding was that his was to be a second mortgage; and Blockburger in turn paid Dunaway the $ 5,000 received from plaintiff together with the further sum of $ 5,000, likewise in currency, to complete the purchase.
It is defendant's contention that this transfer to Blockburger was a mere sham, as were also the pretended loans of plaintiff and Hackman; that no consideration ever passed in any of these transactions, and that they were carried out on paper for the purpose of making it appear that there was a large equity in this property (which was untrue) in order to procure additional insurance upon the improvements; the whole being a scheme to defraud, and being but a part of a conspiracy to acquire equities in properties improved by old buildings, and, through the placing of fictitious loans thereon, to secure insurance far in excess of the value of the improvements, and then cause the buildings to be destroyed by fire.
Though plaintiff had a small bank account, and had, at various times, accounts with different banks, the $ 5,000 claimed to have been paid by him in making the loan upon this deed of trust was not deposited in bank. He claims to have had the amount on hand in currency. Likewise Blockburger, though he had an account at...
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