Dyer v. American Insurance Company of Newark New Jersey

• Decision Date: 06 November 1922
• Citation: 244 S.W. 964,211 Mo.App. 476
• Parties: FRANK DYER, Respondent, v. AMERICAN INSURANCE COMPANY OF NEWARK NEW JERSEY, Appellant
• Court: Kansas Court of Appeals

244 S.W. 964

211 Mo.App. 476

FRANK DYER, Respondent, v. AMERICAN INSURANCE COMPANY OF NEWARK NEW JERSEY, Appellant

Court of Appeals of Missouri, Kansas City

November 6, 1922

Appeal from the Circuit Court of Adair County.--Hon. J. A. Cooley Judge.

AFFIRMED.

Judgment affirmed.

Higbee & Mills for respondent.

A. G Knight for appellant.

OPINION

BLAND, J.

This is an action on a fire insurance policy. A jury was waived and the case tried before the court, resulting in a verdict in favor of plaintiff in the sum of $ 1012.75. Defendant has appealed.

The policy was issued on March 4, 1918, for a term of five years. It insured plaintiff's dwelling house, situated on eighty acres of land in Adair County, Missouri, in the sum of $ 600 and his household goods located in the house in the sum of $ 400. On February 18, 1922, the dwelling house and contents were totally destroyed by fire. Defendant refused to pay the loss, resulting in this suit.

The petition alleges the existence of a policy of insurance on the property and the destruction of the property by fire on the date mentioned. The policy issued is referred to in the petition as follows.

"Said policy of insurance is herewith filed, marked 'Plaintiff's Exhibit A'."

The petition does not plead any of the clauses of the policy except those insuring the property. Defendant's answer consists of a general denial but it further admits the execution of a policy and as an affirmative defense pleads a provision of such policy providing,

"If any of the property shall hereafter become mortgaged or in any manner encumbered that then and in each and every such case the entire policy shall be null and void."

The answer further alleges that after the execution of said policy plaintiff, on November 10, 1920, executed a "mortgage and deed of trust and encumbrance" upon the dwelling house and on the land upon which it was situated, securing the payment of a note in the sum of $ 4000; that said encumbrance was in force at the time of the fire; that defendant had no knowledge of the encumbrance until after the fire; that by reason of the facts pleaded the policy, so far as the insurance on the dwelling was concerned, was void. The answer was not verified. Defendant offered to allow plaintiff to take judgment for the insurance on the furniture. Plaintiff filed a reply consisting of a general denial.

Plaintiff introduced evidence of the loss and rested. Thereupon defendant offered to introduce in evidence the deed of trust it pleaded, also the policy filed by plaintiff as his exhibit A. Objection was made which the court sustained, apparently upon the theory that as defendant's answer was not verified and that under the provisions of section 1415, Revised Statutes 1919, the execution of the instrument sued on was adjudged confessed, and as the petition described a policy not containing the forfeiture clause relied upon by the defendant, that defendant was in no position to offer proof of a policy containing a clause which plaintiff contended was different from the terms of the policy pleaded in the petition. The court held that the fact that plaintiff referred in his petition to a policy containing such a forfeiture clause by referring to plaintiff's exhibit...