Evens v. The Home Ins. Co.

• Decision Date: 07 May 1935
• Docket Number: No. 22584.,22584.
• Citation: 82 S.W.2d 111
• Parties: MYRTLE EVENS, RESPONDENT (PLAINTIFF), v. THE HOME INSURANCE COMPANY OF NEW YORK, A CORPORATION, APPELLANT (DEFENDANT).
• Court: Missouri Court of Appeals

82 S.W.2d 111

MYRTLE EVENS, RESPONDENT (PLAINTIFF), v. THE HOME INSURANCE COMPANY OF NEW YORK, A CORPORATION, APPELLANT (DEFENDANT).

No. 22584.

St. Louis Court of Appeals. Missouri.

Opinion filed May 7, 1935.

Appeal from Circuit Court of Jefferson County. — Hon. E.M. Dearing, Judge.

REVERSED.

Taylor, Chasnoff & Willson and J.H. Cunningham, Jr. for appellant (defendant).

(1) It is essential in a suit on a fire insurance policy to allege an insurable interest in the property at the time of the issuance of the policy as well as at the time of the occurrence of the loss. Rodgers v. Western etc. Fire Ins. Co., 186 Mo. 248, 85 S.W. 369; Harness v. National Fire Ins. Co., 62 Mo. App. 245; Scott & Son v. Phoenix Ins. Co., 65 Mo. App. 75. (2) Plaintiff must recover, if at all, on the theory of action stated in her petition and upon which the case was tried. White v. Merchants Ins. Co., 93 Mo. App. 282; Weaver et al. v. Lake et al. (Mo. App.), 4 S.W. (2d) 834; Gary et al. v. Averill et al., 321 Mo. 840, 12 S.W. (2d) 747; Shellenberger v. Hill (Mo. App.), 216 S.W. 542. (3) The undisputed evidence showed that the attempted purchase of the automobile in question by plaintiff was void, and at the time of the issuance of the policy of insurance sued on plaintiff owned no insurable interest in said automobile, and said policy is therefore void. R.S. Mo. (1929 Ed.), Sec. 7774; State ex rel. Connecticut Fire Ins. Co. v. Cox et al., 306 Mo. 537, 268 S.W. 87; Mathes v. Westchester Fire Ins. Co. (Mo. App.), 6 S.W. (2d) 66; Weaver et al. v. Lake et al. (Mo. App.), 4 S.W. (2d) 834; Isaacson v. Van Gundy (Mo. App.), 48 S.W. (2d) 208; La Font v. Home Ins. Co., 193 Mo. App. 543, 182 S.W. 1029; Avery v. Mechanics Ins. Co., 295 S.W. 509; Williams v. Peoples etc. Ins. Co. (Mo. App.), 35 S.W. (2d) 922; Prudential Ins. Co. v. German Mut Fire Ins. Assn. (Mo. App.), 60 S.W. (2d) 1008; Morris v. Firemen's Ins. Co., 121 Kan. 482, 247 Pac. 852. (4) The undisputed evidence showed that the policy of insurance sued on provided that it shall be void if the interest of the plaintiff in the automobile in question be other than unconditional and sole lawful ownership; that at the time of the issuance of said policy thereafter plaintiff was not the sole and unconditional lawful owner of said automobile, and said policy was void. Fulbright v. Phoenix Insurance Co., 329 Mo. 207, 44 S.W. (2d) 115; Barnard v. National Fire Ins. Co., 27 Mo. App. 26; Cole v. Niagara Fire Ins. Co., 126 Mo. App. 134, 103 S.W. 569; Buhlinger v. United Firemen's Ins. Co. (Mo. App.), 16 S.W. (2d) 699; Miller v. Great American Ins. Co. (Mo. App.), 61 S.W. (2d) 205; Froehly et al. v. North St. Louis Mut. Fire Ins. Co., 32 Mo. App. 302; Ohio Farmers Ins. Co. v. Todino, 111 Ohio St. 274, 145 N.E. 25. (5) The undisputed evidence showed that it was warranted in the policy of insurance sued on that the amount of the purchase price of said automobile had been fully paid, whereas, in fact, a substantial portion of said purchase price had not been paid at the time of the issuance of said policy and thereafter up to and including the time of the occurrence of the fire, and said policy was void. Andrews v. Bulldog Fire Ins. Assn. (Mo. App.), 258 S.W. 714; Farber v. American Automobile Ins. Co., 191 Mo. App. 307, 177 S.W. 675; Crook v. Phoenix Ins. Co., 38 Mo. App. 582. (6) The court erred in excluding defendant's Exhibit C, being a duly recorded chattel mortgage on the automobile in question, which was executed by plaintiff's husband, acting as her duly authorized agent. Buck v. Stuyvesant Ins. Co. (Mo. App.), 237 S.W. 840; Ramer v. Ins. Co., 70 Mo. App. 47. (7) The court erred in excluding defendant's Exhibit D, being a notice and certificate of insurance issued by the Export Insurance Company to plaintiff's duly authorized agent, her husband, George C. Evens, whereby any interest which plaintiff may have had in the automobile in question was insured against loss and damage by fire during the period of time in question. Barnard v. National Fire Ins. Co., 27 Mo. App. 26; Polk v. Western Assurance Co., 114 Mo. App. 514, 90 S.W. 397; Rodgers v. Home Ins. Co., 155 Mo. App. 276, 136 S.W. 743. (8) The single instruction given by the court to the jury in this case, purporting to cover the entire case, is erroneous for each of the following reasons: (9) Because it directs a verdict for plaintiff without requiring a finding of any insurable interest in plaintiff at the time of the execution of the policy sued on. White v. Merchants Ins. Co., 93 Mo. App. 282; Hayward v. Globe & Rutgers Fire Ins. Co. (Mo. App.), 6 S.W. (2d) 648; Avery v. Mechanics Ins. Co., 295 S.W. 509. (10) Because it directs a verdict for plaintiff without requiring a finding that plaintiff was the sole and unconditional owner of the automobile in question either at the time of the issuance of the policy or at the time of the occurrence of the fire, and without requiring a finding of waiver of said policy provision. See authorities under (A), supra; Miller v. Great American Ins. Co. (Mo. App.), 61 S.W. (2d) 205, l.c. 209. (11) Because it directs a verdict for plaintiff without requiring a finding that the purchase price of the automobile in question was fully paid at the time the policy of insurance sued on was procured, and without requiring a finding of waiver of said policy provision. State ex rel. Long v. Ellison et al., 272 Mo. 571, 199 S.W. 984; Link v. Westerman, 80 Mo. App. 592. (12) Because it failed to give the jury any proper rule or guide for fixing the amount of damages, if any, which plaintiff was entitled to recover. Curtiss v. Indemnity Company of America, 327 Mo. 350, 37 S.W. (2d) 616; La Font v. Home Insurance Co., 193 Mo. App. 543, 182 S.W. 1029.

Terry, Terry & Terry for respondent.

(1) Any title or interest in property, legal or equitable, will support a contract of insurance thereon. Commercial Union Assurance Co. v. Jass, 36 Fed. (2d) 9, l.c. 10, 59 S. Ct. Rep. 410; Hayward v. Fidelity-Phoenix Insurance Co., 285 S.W. 144, l.c. 146; Clower v. Insurance Co., 220 Mo. App. 1112, l.c. 1119, 1120, 1121, 1122; Michael v. Insurance Co., 17 Mo. App. 23, l.c. 26; American Insurance Co. v. Dean, 243 S.W. 415, l.c. 417. (2) One who has possession of property, claiming it in good faith as the owner under a verbal transfer, has an insurable interest in the property, although it, in fact, be the separate property of his wife. Travis v. Continental Ins. Co., 32 Mo. App. 198, l.c. 206; Michael v. Insurance Co., 17 Mo. App. 23, l.c. 26. (3) Where defendant sells car to plaintiff the defendant is entitled to a reasonable time, all circumstances in evidence being considered, to furnish plaintiff with a certificate of title. Beckley v. Hickerson, 315 Mo. 400, l.c. 404. (4) The ownership of property, such as an automobile, is in someone, and where Mr. Mallicoat and his grantors had parted with possession for a consideration (paid for and to the use of plaintiff) and they were entrusted with the getting of the certificate of title changed from them to plaintiff, and which certificate of title was within less than thirty days transferred to plaintiff in legal form, gave plaintiff title. Wilkison v. Grugett, 223 Mo. App. 889, l.c. 894; Clower v. Ins. Co., 220 Mo. App. 1112, l.c. 1119-1120-1121-1122. (5) Paragraph A of Section 18 of the Automobile Laws provides that under certain conditions the buyer may have the right to use the automobile with number plates of original owner for a period of five days, and under other conditions may use the automobile for fifteen days with the dealer's number plates. This was evidently intended to give the buyer reasonable time to register the motor vehicle and obtain a certificate of title. But it does not necessarily follow that the buyer does not have title during that five or fifteen days. Wilkison v. Grugett, 223 Mo. App. 889, l.c. 892. (6) The export policy was in effect insurance by the Commercial Credit Trust upon its own interest and account, and its act in having procured such policy cannot be so far regarded as the act of plaintiff as to have constituted a violation of the provision against other insurance in the policy issued by defendant. Clower v. Fidelity-Phenix Fire Ins. Co., 220 Mo. App. 1112, l.c. 1120. (7) An insurance company cannot be permitted to deny that property insured thereby was worth at the time of issuing of a policy the full amount insured thereon. R.S. of Mo. 1929, Section 5829; Hilburn v. Insurance Co., 140 Mo. App. 355, l.c. 368-369. (8) Instruction in the case at bar covers all essential elements in cases of this kind and correctly instructs as to the measure of damages herein. Grossman v. American Ins. Co., 204 S.W. 947, l.c. 948; Muehlbach v. Brewing Co., 242 S.W. 174, l.c. 179, and many cases there cited; Johannes v. Becht Laundry Co., 274 S.W. 377, l.c. 379; Hilburn v. Insurance Co., 140 Mo. App: 355, l.c. 366; Hayward v. Globe & Rutgers Fire Ins. Co., 6 S.W. (2d) 648, l.c. 649, as cited by appellant.

HOSTETTER, P.J.

This suit was begun in the Circuit Court of Jefferson County on the 17th day of July, 1931, and is an action to recover damages to the amount of $700 under a policy of insurance issued by defendant on a Nash sedan automobile which was destroyed by fire on the 27th day of February, 1931.

The policy of insurance was issued on the 3rd day of March, 1930, insuring the automobile against the peril of fire, among other things, in consideration of the premium paid by the assured amounting to $12.95.

The petition was in conventional form.

Defendant's answer consisted of, first, a general denial; second, that the plaintiff was not the sole and unconditional owner of the car at the time of the issuance of the policy or at any time thereafter, and that the plaintiff did not acquire any title or interest in the car at any time and had no insurable interest at the time the policy was issued and delivered and that the interest of the plaintiff in...