Ewing v. Dubuque Fire & Marine Ins. Co.

• Decision Date: 05 February 1951
• Docket Number: No. 21524,21524
• Citation: 237 S.W.2d 498
• Court: Missouri Court of Appeals
• Parties: EWING et al. v. DUBUQUE FIRE & MARINE INS. CO.

Page 498

237 S.W.2d 498

EWING et al. v. DUBUQUE FIRE & MARINE INS. CO.

No. 21524.

Kansas City Court of Appeals, Missouri.

Feb. 5, 1951.

Alvin C. Trippe, Hogsett, Trippe, Depping, Houts & James, all of Kansas City, for appellant.

Hammond C. Woods and White & Hall, all of Kansas City, for respondents.

CAVE, Judge.

This is a suit to recover on a fire insurance contract for loss of personal property. Plaintiffs recovered a verdict and judgment for $1,000 for loss of property, $200 interest, and $500 attorney fees for alleged vexatious refusal to pay. The defendant has appealed.

The material part of the petition alleges: 'Plaintiffs further state that on or about November 8, 1946, for a valuable consideration paid to it, the defendant contracted, agreed and did insure plaintiffs against loss and damage to their household goods and personal property for the sum of One Thousand Dollars ($1,000.00) while located in the premises at Lot 33, Block I, Lake Lotawana. That it was intended and understood by the parties that said agreement would be reduced to writing by the defendant and evidenced by a written policy in the Missouri standard form. That in reducing said agreement to writing, the defendant's agent, by mistake, error or otherwise, provided for said insurance coverage to begin November 27, 1946, instead of November 8, 1946, as had been agreed upon between the plaintiffs and the defendant insurance company, and defendant issued its written policy designated as No. 379130 which renewed the insurance on the building, but failed to express the agreement of the parties insuring the household goods as above set out.

'That plaintiffs received said policy on or about November 9, 1946, and thereupon notified defendant that they had no insurance on said property and wanted it insured as previously ordered from November 8, 1946, and defendant's agent then orally agreed to issue a binder in conjunction with said policy adding the coverage and insuring said property against fire loss from November 8, 1946, until November 27, 1946.'

The evidence discloses that the plaintiffs were husband and wife at the time of the issuance of the insurance contract and of the fire, but at the time of the trial they had been divorced and Mrs. Ewing's maiden name of Sammons was restored. They had bought a house at Lake Lotawana from Edwin W. Blair and Jessie E. Blair, his wife, who carried a $2,000 insurance policy in another company on the house only. This policy, which expired November 27, 1946, was assigned to the plaintiffs. Prior to the fire plaintiffs moved some household goods and personal property into the house and decided they should have some fire insurance on these items. On November 8 Mrs. Ewing called defendant's agent and asked him to increase the insurance on the house from $2,000 to $3,000 and to write $1,000 insurance on the household goods located at the Lake. 'I said 'I want that to go into effect right away; when the whole policy expires I want that renewed.' * * * He said he would.' In the same conversation she requested a $1,000 fire insurance policy on the household goods in the apartment where plaintiffs lived at 722 West 44th Street in Kansas City. Both policies were issued and mailed by defendant's agent to the plaintiffs and were received by them November 9. Both policies were dated November 8, and the one insuring the household goods in the apartment became effective on that date, but the policy which covered the Lake property and household goods was to become effective on November 27. When Mr. Ewing examined this policy he noted that the insurance on the household goods at the Lake did not become effective until November 27 and he called defendant's agent advising him that he had made a mistake and that he and his wife wanted the $1,000 insurance on the household goods at the Lake to become effective on November 8, as Mrs. Ewing had requested. 'I told him we would like to have that started the 8th of November, the day my wife called up. He said, well, he could take care of that with what he called a binder. He said it would be taken care of, and after the 27th the other thousand on the house and the furniture would all go together. If we wanted insurance on the furniture to that time, he would take care of it by a binder. I asked him if that was all we needed, and he said yes, and he said it would all be taken care of, and I supposed it was taken care of.' The agent denied this conversation and said he issued the policies according to the instructions given him by Mrs. Ewing. However, he testified: 'Q. * * * If he had called you and asked you to cover, that they wanted the household goods out there covered from the 8th, you could have taken care of that by issuing an endorsement? A. That's right. Q. There is no reason that you know of now why you wouldn't have done it had he requested it? A. No.' No binder or endorsement changing the effective date was issued. On November 26 a fire occurred totally destroying the building and household goods. Plaintiffs collected $2,000 for the building under the Blair policy, but the defendant refused to pay the insurance on the household goods on the theory that the insurance did not become effective until November 27. After the fire Mr. Ewing called defendant's agent to inquire about the binder or endorsement and the agent said he forgot to issue it. The agent denied this conversation. The agent testified that he extended credit to the plaintiffs for the premium and that it was paid January 18, 1947. It is conceded that the agent was a general agent of the defendant.

Defendant contends that its motion for a directed verdict should have been sustained because (a) the petition is founded upon an oral contract to insure and does not allege a consideration for such contract and is therefore defective; and (b) that the evidence fails to prove any consideration for such oral contract. The crucial hinge in this controversy is whether plaintiffs' petition, evidence and instructions were founded on the theory that the insurance was an oral contract of insurance covering the period from November 8 to November 27, or whether the suit was based on the written contract, the effective date of which had been changed from November 27 to November 8.

The cases cited by defendant support the proposition that a petition founded upon an oral contract of insurance must allege, and the evidence must prove, a consideration therefor. Swift v. Central Union Fire Ins. Co., 279 Mo. 606, 216 S.W. 935. However, we do not believe such cases are controlling because we do not consider this to be a suit upon an oral contract of insurance. By giving the petition the liberal construction that it is entitled to after verdict, we think it states a cause of action upon a written contract of insurance, the effective date of which was changed and modified by defendant's general agent who, after the issuance of the policy and before plaintiffs finally accepted it, agreed to attach a binder or endorsement thereto which would make the provisions of the policy effective from November 8 instead of November 27, in so far as the household goods were concerned. The policy did not become a final contract until it had been issued in accordance with plaintiffs' directions and accepted by them. According to the petition and the evidence they retained the policy on the...