Farmers' Bank v. Manchester Assur. Co.

• Citation: 106 Mo. App. 114,80 S.W. 299
• Parties: FARMERS' BANK et al. v. MANCHESTER ASSUR. CO.
• Decision Date: 01 March 1904
• Court: Court of Appeal of Missouri (US)

80 S.W. 299

106 Mo. App. 114

FARMERS' BANK et al. v. MANCHESTER ASSUR. CO.

St. Louis Court of Appeals. Missouri.

March 1, 1904.

FIRE INSURANCE—ACTION ON POLICY—PARTIES —PETITION—INACCURACY—VARIANCE —PROOF OF LOSS.

1. The persons whose property is insured and the bank made, by a slip attached to the policy, payee of the proceeds of the policy, so far as the mortgage indebtedness of insured to it is unpaid, are properly made joint plaintiffs in an action on the policy.

2. A complaint which, as a whole, sufficiently shows the facts, is good after verdict, notwithstanding mere inaccuracies of statement.

3. A variance will not be considered on appeal unless the objecting party has proceeded, as provided by Rev. St. 1899, § 655, to show by affidavit that he was misled thereby.

4. It is but a variance, and not a failure of proof, where the petition in an action on a fire policy alleges an absolute promise, and the evidence shows a conditional promise.

5. Under Rev. St. 1899, § 634, providing that performance of conditions precedent may be pleaded by a general allegation that the party duly performed all the conditions on his part, such an allegation in the petition on a fire policy is a sufficient pleading of the furnishing of proofs of loss.

6. Under Rev. St. 1899, §§ 7977, 7978, providing that failure of the insurer to furnish blank proofs of loss estops it to complain of insured's failure to furnish proof of such loss, admission of the insurer that it did not furnish such blanks relieves insured of further proof in that regard.

7. The petition in an action on a fire policy in case of total loss need make no reference to the three-fourths value clause, or the provision as to concurrent insurance, these being matters of defense.

Appeal from Circuit Court, Pike County; D. H. Eby, Judge.

Action by the Farmers' Bank and others against the Manchester Assurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

E. W. Major and Barclay & Fauntleroy, for appellant. W. O. Gray and Dempey & McGinnis, for respondents.

Statement.

REYBURN, J.

This action purported to be brought upon a policy issued by defendant, bearing date December 21, 1901, insuring Annie Swype and Fannie Stockdale against direct loss or damage by fire to an amount not exceeding $3,000—$2,000 upon a brick building and its additions, specifically described and $1,000 upon their contents, consisting of enumerated household and kitchen furniture. The policy embodied an agreement on part of defendant that any of its provisions in conflict with the statutes of the state of Missouri was distinctly held and acknowledged to be inoperative and of no avail. The policy had attached thereto a slip as follows:

"Three-fourths value clause—Missouri.

"The Manchester Assurance Company. 1824.

"In consideration of the rate of premium at which this policy is written, it is a condition of this insurance, that in event of loss or damage by fire to the property insured, this Company shall not be liable for an amount greater than three-fourths of the cash market value of each item of the same—not exceeding the amount of the policy—at the time immediately preceding such loss or damage; and in the event of other insurance on the property insured, then this Company shall be liable only for its proportion of three-fourths such cash market value at the time of the fire. Other concurrent insurance permitted, but the total insurance, including this policy, shall at no time exceed three-fourths of the cash value of each item of the property hereby covered."

The schedule, descriptive of the property insured, contained a clause to the effect that loss, if any, should first be payable to Farmers' Bank of Bowling Green, Mo., as its interest might appear, and the action was in the names of the Farmers' Bank, Fannie Stockdale, and Annie Swype, as plaintiffs. The statement of the cause of action, upon which the trial was had, recited the corporate existence and powers of the corporations plaintiff and defendant, and declared that defendant made its insurance policy, whereby, in consideration of the premium paid by plaintiffs Fannie Stockdale and Annie Swype, it insured plaintiffs against loss or damage by fire to the amount of $2,000 on the buildings and additions, and $1,000 on their household and kitchen furniture; that at time of making such contract and issuing policy, and at all times from such day up to and at time of the fire, plaintiffs Stockdale and Swype were unconditional, sole owners, seised in fee of the realty described, subject to the mortgage lien of the Farmers' Bank, and unconditional and sole owners of the personalty described and covered by the policy at time of the insurance, thereafter, and at the time of the destruction by fire; that such personal property was so destroyed by fire while contained in the building insured by defendant, and, at the time it was insured and destroyed, reasonably worth $2,000; that the Farmers' Bank then and at time of issuance of the policy was owner and holder of a note for $3,000, secured by deed of trust on such realty, and a lien thereon, and loss under the policy was payable to the bank to the extent of such note, and the bank therefore made a party; that on the 29th of December, 1900, while the policy was in force, the building and personalty were totally destroyed by fire. The petition concluded with general allegation of performance by plaintiffs of all conditions of the contract on their part, and of due notice of the fire and loss to defendant, and demand for and failure of payment, and for judgment.

The defense interposed by defendant consisted of a verified answer, thus set forth:

"Said defendant, for its amended answer in the amended petition of the plaintiffs filed in this cause, denies each and every allegation, matter, and thing which is set forth or stated in said amended petition, and denies that defendant ever made with or executed or delivered to the plaintiffs the contract sued upon, and set up in plaintiffs' amended petition in this cause. Whereupon it prays judgment for its costs and disbursements herein.

"State of Missouri, County of Pike—ss.: E. W. Major, one of the attorneys and agents of defendant in this cause, on his oath says that he has read the above and foregoing amended answer, and the matters therein stated, and that the facts and statements therein contained are true; and says, on his oath, that the defendant did not make with, execute, or deliver to the plaintiffs the contract sued upon and set up in plaintiffs' amended petition in this cause, and that he, as agent and attorney of and for the defendant in this cause, makes this affidavit for and upon behalf of said defendant."

A trial before a jury March 11, 1903, terminated in a verdict for plaintiffs, and from judgment thereon defendant has duly appealed.

By stipulation in which it was agreed that two other cases on policies covering the buildings should abide the result of this case, it was admitted that the plaintiff bank was a corporation, and holder of a note for $3,000, secured by deed of trust upon the property described in the petition; that defendant was a corporation licensed to do insurance business; that it issued the policy offered in evidence through its duly authorized agent; that appellant received due notice of the fire, as required by the policy, and furnished no forms for proofs of loss, and refused payment. The evidence consisted of the policy, and the testimony of various witnesses to the effect that there was a total loss of the property; that the building destroyed, at time of the fire, was worth about $12,000; that Fannie Stockdale and Annie Swype were owners of the personalty, which was wholly burned, and then of value of $2,500 to $3,000; that these plaintiffs were owners of the realty, acquiring it by conveyance from their brother in the year 1897; that the bank held a deed of trust thereon, executed by Fannie Stockdale and Annie Swype, to secure payment of a note for $3,000. The defendant thereupon presented an instruction demurring to the evidence in form following: "The defendant demurs to the evidence of the said plaintiffs, and moves the court to direct a verdict for the defendant, for the reason that, under the law and the evidence of the case, the plaintiffs are not entitled to recover"—which the court overruled.

Opinion.

1. The position of defendant in this case, and the theory of the defense presented, were that plaintiffs set forth in their complaint one cause of action, and were permitted to recover upon proof of a cause of action entirely different from that pleaded; that the contract averred by plaintiff was especially an absolute promise to pay the sums of money therein specified, while the evidence relied on, namely, the insurance policy, exhibited a conditional contract. In the admissions of fact made, the right was reserved of objecting to the admission of any such facts in evidence, and they were subject to the right of defendant to object to any of them when offered in evidence under the pleadings, in the same manner as defendant would have the right of objection if the facts were testified to on the stand; and the objection to the evidence as the trial progressed was reiterated, that it was inadmissible under the pleadings, as the contract sued on was unconditional, as averred, whilst the contract issued by the company was conditional and different; and exceptions were duly saved. One of the foundations relied on to uphold this contention of a departure in the proof was that the policy specified the two individual plaintiffs as the insured, while the slip designated in the argument as a "rider," attached to the policy, made the plaintiff bank payee of the proceeds of the policy in so far as its mortgage indebtedness was unpaid; that an analysis of the transaction between the parties would evince that the defendant obligated itself by insuring the two natural...