Farmers' Bank v. Manchester Assur. Co.

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

80 S.W. 299

106 Mo.App. 114

FARMERS BANK, etc., et al., Respondents, v. MANCHESTER ASSURANCE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 1, 1904

Appeal from Pike Circuit Court.--Hon. David H. Eby, Judge.

AFFIRMED.

STATEMENT.

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 three thousand dollars, two thousand dollars upon a brick building and its additions specifically described, and one thousand dollars 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, Missouri, 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 the power 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 two thousand dollars, on the buildings and additions, and one thousand dollars 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, seized 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 the 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 time it was insured and destroyed reasonably worth two thousand dollars. That the Farmers Bank, then, and at time of issuance of the policy, was owner and holder of a note for three thousand dollars 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 twenty-ninth 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 plaintiff 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 plaintiff's amended petition in this cause.

"Wherefore 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 out in plaintiff's 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 three thousand dollars, secured by a 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, 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 twelve thousand dollars; that Fannie Stockdale and Annie Swype were owners of the personalty, which was wholly burned, and then of value of twenty-five hundred to three thousand dollars; that these plaintiffs were owners of the realty, acquiring it by conveyance from their brother in the year 1896; that the bank held a deed of trust thereon, executed by Fannie Stockdale and Annie Swype to secure payment of a note for three thousand dollars. 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.

Judgment affirmed.

Barclay & Fauntleroy and Elliott W. Major for appellant.

(1) The court erred in allowing policy of insurance, "Exhibit A" (No. 2462847) to be received in evidence because it failed to prove the contract alleged. There is but one cause of action, though several different items of property are damaged or destroyed. Rissler v. Ins. Co., 150 Mo 373. (2) The petition, under a suit based on "Exhibit A," should have set up what other insurance existed on the property, or negative the existence of any other insurance thereon. Coates v. Ins. Co., 30 P. 404. (3) "Exhibit A" is not the same contract as that set forth in the amended petition. R. S. 1899, sec. 798, p 286. The policy reads "Loss, if any, first payable to Farmers Bank, as its interest may appear." It makes the bank only the "payee, or the one to receive the money." It establishes a different contract from that alleged. Williamson v. Ins. Co., 86 Wis. 396; Carberry v. Ins. Co., 86 Wis. 327; Faulkner v. Faulkner, 73 Mo. 335; Green v. Cole, 127 Mo. 579; Link v. Vaughn, 17 Mo. 585; 22 Ency. Pl. and Pr. 602; Seibert v. Allen, 61 Mo. 488; Utassey v. Giedinghagen, 132 Mo. 60; Laclede Co. v. Tudor Works, 169 Mo. 154; Clements v. Yates, 69 Mo. 693; Halpin v. School Dist., 54 Mo.App. 371; Cole v. Armour, 154 Mo. 350; Feurth v. Anderson, 87 Mo. 354; Huston v. Tyler, 140 Mo. 252; Hayes v. Bunch, 91 Mo.App. 467. Again: The three-fourths value clause is a valid and binding contract, and makes a different contract from that sued on. Dolan v. Ins. Co., 88 Mo.App. 666; Bunch v. Ins. Co., 85 Mo.App. 158; Farmers Co. v. Ins. Co., 32 Ins. L. J. 162; Funk v. Iowa Assn., 72 N.W. 774, 103 Ia. 660. (4) Before a good cause of action can be stated upon "Exhibit A," the burden is on plaintiffs to set forth (a) that clause of the policy, which relates to other insurance and what proportion thereof the defendant is liable for; (b) what other insurance is upon the property, in question, or (c) it should negative the fact of any other insurance being thereon. Again: Before a good cause of action can be stated upon "Exhibit A," all clauses of the policy that are conditions precedent, notice of loss and proofs of loss, must be set up in the petition, and the performance thereof averred. Notice of loss and proofs of loss are not one and the same condition. Edgerly v. Ins. Co., 48 Ia. 587, 5 Ins. L. J. 846; Kellogg v. Ins. Co., 5 Ins. L. J. 929; Price v. Ins. Co., 77 Mo.App. 240; Gasser v. Sun Office, 42 Minn. 319; McCullough v. Ins. Co., 103 Mo. 606; Maddux v. Ins. Co., 56 Mo.App. 348. (5) "Exhibit A" is not the same contract as that set up in the amended petition: Cooledge v. Ins. Co., 30 A. 802; Nelson v. Ins. Co., 2 Ins. L. J. 342; McGookey v. Ins. Co., 33 Ohio St. 569. That clause in policy requiring immediate notice of loss is condition precedent, and it is not alleged by plaintiffs. Johnson v. Ins. Co., 57 N.E. 278; 2 May on Ins. (3 Ed.), sec. 460, p. 1063; McGookey v. Ins. Co., 33 Ohio St. 569. (6) The court erred in receiving the (conditional) fact that plaintiffs...