Farmer v. London & Lancashire Ins. Co.
| Decision Date | 10 January 1955 |
| Docket Number | No. 22125,22125 |
| Court | Missouri Court of Appeals |
| Parties | Wallace E. FARMER, Jr., and Alice J. Farmer, Respondents, v. The LONDON & LANCASHIRE INSURANCE COMPANY, Ltd., a corporation, The Home Insurance Company, N. Y., and United States Fire Insurance Company, Appellants. |
Vance Julian, Clinton, Julian & Conrad, Clinton, of counsel, for appellants.
T. Bryant Johnson, Osceola, for respondents.
Respondents brought this suit to recover under three fire insurance policies issued, respectively, by the appellants. A jury being waived, the court gave judgment for the respondents as follows: Against the London & Lancashire Insurance Company, Ltd., a corporation, $300; against the United States Fire Insurance Company, $200; against the Home Insurance Company of N. Y., $100. From this judgment the defendants appealed. For convenience respondents and appellants will be referred to hereinafter, respectively, as plaintiffs and defendants, as they appeared in the trial court.
The petition pleads three fire insurance policies issued to the plaintiffs, husband and wife, by the defendants, respectively, on a dwelling, jointly owned by the plaintiffs at 502 South Third Street in Clinton, Missouri. It is alleged that the policies, issued on different dates, were for different amounts, aggregating $6,000; that they were all in force on December 29, 1952, when the alleged fire occurred. It is averred that on December 29, 1952, a private outbuilding on the plaintiffs' premises, immediately behind the plaintiffs' dwelling, was damaged by fire to the extent of more than $600. The petition states that each policy contained the following clause:
'The Insured may apply up to ten per cent (10%) of the amount specified for the dwelling, to cover private structures appertaining to the dwelling described and located on the premises, but not structures used in whole or in part for (a) mercantile, manufacturing, or farming purposes, nor (b) any structures (except structures used principally for private garage purposes) which are rented or leased to other than a tenant of the dwelling covered hereunder."
It is further alleged in the petition that the fire loss did not take place from any of the causes excepted in said policies; that the defendants had denied their liability for their respective proportions of the loss, on the ground that the building damaged was not a private outbuilding within the terms of the policies; that the defendants, under their respective policies, owe the plaintiffs on account of the alleged fire loss as follows: The London & Lancashire Insurance Company, Ltd., $300; United States Fire Insurance Company, $200, and The Home Insurance Company, N. Y., $100.
The answer of the defendants, in addition to a general denial, admitted the policies; admitted that they were in force and effect at the time of the alleged fire; admitted that the fire occurred, and that the building damaged thereby was an outbuilding belonging to the plaintiffs on their premises at 502 South Third Street in Clinton, Missouri; that the policies were issued on plaintiffs' dwelling at that address, but alleged that such outbuilding was at the time of such fire being used in part for '(a) mercantile, manufacturing or farming purposes', which was an exception contained in the policies.
The answer further alleged that plaintiffs had collected $1,435.52 for loss of contents in the outbuilding under a separate policy therefor issued by another insurance company under a mercantile form of policy, for a higher rate, and that the loss was paid under a proof of loss of goods, wares and merchandise used in plaintiffs' business or occupation.
The evidence discloses that prior to 1948, the plaintiff Wallace E. Farmer, Jr., was engaged in the business of making syrups and noncarbonated distilled drinks. He made those products in the basement of his home at 502 South Third Street, Clinton, Missouri. He had a place of business on East Franklin Street in Clinton, where he sold appliances, syrups and cigarettes. In 1948, he accepted employment with the Julep Company, as a manufacturer's representative for concentrates, in which employment he was still engaged at the time of trial. At that time or shortly prior thereto, he liquidated his business, closed his shop, sold most of his business property and stored the remaining bottling equipment and supplies in the basement of his home and in a two-story frame barn in the rear of the above residence property. The barn had been used to store a few household effects and seldom used as a garage for Mr. Farmer's car, although there was no garage on the premises. Such of the equipment and supplies from his place of business on East Franklin Street which he did not store in the barn when he closed his shop, he stored in the basement of his home. At no time had he ever mixed or made any of his beverages in the barn. He had a separate insurance policy on his equipment and supplies on East Franklin Street and had that policy transferred to cover the same in the barn on his premises, and the amount of that policy increased to $1,500. When the barn was partially destroyed by the fire in question, he collected $1,435.52 on that separate policy for loss of the contents.
Following the fire, which did not damage their dwelling, the plaintiffs made claim under the three policies issued by the defendants, claiming coverage of the loss on the barn under the ten percent clause above quoted, and on the contention that the barn was a private structure appurtenant to the dwelling on the premises and 'not used in whole or in part for mercantile, manufacturing or farming purposes'. Plaintiffs asserted that the loss to the barn exceeded $600, or more than ten percent of the total of $6000, face amount of the three policies, and contended that they were entitled to collect such ten percent from the defendants in the respective amounts pleaded.
The defendants introduced insurance rating cards from their files to show...
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