Fitterling v. Johnson County Mut. Fire Ins. Co.

• Decision Date: 21 January 1938
• Citation: 112 S.W.2d 347,232 Mo.App. 805
• Parties: M. D. FITTERLING, APPELLANT, v. JOHNSON COUNTY MUTUAL FIRE INSURANCE COMPANY ET AL., RESPONDENTS
• Court: Kansas Court of Appeals

112 S.W.2d 347

232 Mo.App. 805

M. D. FITTERLING, APPELLANT, v. JOHNSON COUNTY MUTUAL FIRE INSURANCE COMPANY ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

January 21, 1938

Appeal from the Circuit Court of Pettis County.--Hon. Dimmitt Hoffman, Judge.

AFFIRMED.

Judgment affirmed.

A. R Thompson, Jr., and John T. Martin for appellant.

T. C Owen and Russell L. Garnett for respondents.

OPINION

BLAND J.

This is an action upon a fire insurance policy. The case was tried as a suit in equity, resulting in a decree that plaintiff be paid by the defendant, insurance company, one-fourth of the insurance left after paying certain taxes and a fee of $ 50 to the attorney for the defendant, insurance company; that the remainder be paid to the defendant, Presbyterian Orphanage of Missouri, and that it should reimburse plaintiff in the sum of $ 16.50 for its proportionate part of the insurance premiums paid by him. Plaintiff has appealed.

The facts as nearly as they can be stated, in view of the failure of the parties to introduce evidence of material dates and other matters, show that Elmer and M. S. Fitterling, brothers, owned a farm in Johnson county upon which a barn, the subject of the insurance in question, was situated; that Elmer Fitterling owned a three-fourths interest and his brother a one-fourth interest in the farm, the two holding it as tenants in common; that on or about September 21, 1931, the policy in suit was issued to them, insuring, among other property, the barn in question for $ 500. The policy was for a term beginning September 21, 1931, and ending September 21, 1936. It was issued to the brothers and "their legal representatives."

On December 24, 1932, Elmer Fitterling died while the policy was still in force, leaving a will, not introduced in evidence, but it is admitted in the briefs that it devised the property in question to his brother for life and the remainder to the defendant, the Presbyterian Orphanage. Sometime after Elmer Fitterling's death the plaintiff herein was appointed administrator of his estate with the will annexed. The answer of the Presbyterian Orphanage of Missouri alleges that this appointment was made on January 9, 1933, but there is no evidence of this, nor, is this fact admitted in the briefs.

There was a decree introduced in evidence which recites that on January 17, 1933, M. S. Fitterling, by warranty deed, conveyed the land on which the barn was situated to the plaintiff and his wife. The decree also states that M. S. Fitterling died on the 24th day of December, 1933. This was not proof of these facts. However, there is evidence that soon after this deed was made (whenever that was) the plaintiff went to the office of the insurance company and, without having the policy in his possession (the same apparently having been lost or misplaced), asked the insurance company to reissue and transfer the insurance to him and his wife. By means of the information obtained from the written application for the original insurance, the company was able to make a copy of the insurance policy and delivered the copy to the plaintiff with the name of the insured, Elmer and M. S. Fitterling, stricken out and plaintiff's name as the insured inserted in the policy.

The testimony of the plaintiff and an officer of the insurance company was to the effect that this policy was reissued and transferred to plaintiff and his wife. In other words that it was new insurance. What was actually the legal effect of this transaction, in view of the fact that the policy was originally issued to Elmer and M. S. Fitterling and their legal representatives and that plaintiff was then the administrator of Elmer Fitterling's estate, is not necessary to inquire into for, as hereinafter indicated, the case is decided on grounds not involving these circumstances.

The insurance company was an assessment company and the policy could not be kept in force except by paying the assessments. Plaintiff, as administrator of the estate, paid one of these assessments because Elmer Fitterling was obligated to pay it during his lifetime. The balance of the assessments were paid by plaintiff out of his own funds. A fire occurred on June 27, 1936, destroying the barn insured.

The decree of the Circuit Court of Johnson County, which we have alluded to, dated June 22, 1936, was introduced in evidence by the Presbyterian Orphanage. This decree recites, among other things, that the deed from M. S. Fitterling to plaintiff, executed on the 17th day of January, 1933, was fraudulent and void as to the Presbyterian Orphanage and the same was set aside and for naught held as to it; that on the death of M. S. Fitterling, on December 21, 1933, the Presbyterian Orphanage became seized in fee simple of an undivided three-fourths interest in the land in question, under the terms of the will of Elmer Fitterling, "and that the pretended title attempted to be conveyed to the said undivided three-fourths interest in said land by said May Sylvester, to the defendants, Melville D. Fitterling and Lydia M. Fitterling, his wife, should be, and is divested out of the said Melville D. Fitterling and Lydia M. Fitterling, his wife, and vested in the Presbyterian Orphanage." It was also decree that the Presbyterian Orphanage recover from the defendants M. D. Fitterling and his wife, three-fourths of the annual rental value of the premises from the first day of March, 1933 at the rate of $ 450 per annum.

It appears that the insurance company was summonded as garnishee in an effort to collect the money part of this judgment. What became of that proceeding is not shown in the evidence. It also appears that the insurance company filed a bill of interpleader, asking that M. B. Fitterling and the Presbyterian Orphanage interplead for the amount of the insurance in suit. What became of this suit is likewise not shown in the record. This present action to recover the amount of the insurance was instituted on September 8, 1936, by the plaintiff, against the defendant Johnson County Mutual Fire Insurance Company.

On October 12, 1936, the Presbyterian Orphanage filed a motion to be made party-defendant to this suit, claiming that it owned a three-fourths interest in the proceeds of the insurance. On October 14, 1936, said motion was sustained. The record fails to show any objection to the Presbyterian Orphanage being made party-defendant, or, any exception to the sustaining of said motion.

On October 12, 1936, the insurance company filed its answer, admitting the existence of the insurance; that the barn was destroyed by fire; that it was indebted either to the plaintiff or to the Orphanage in the sum of $ 500; that the Orphanage was claiming a three-fourths interest in the proceeds of the policy; that plaintiff was claiming the entire amount; that it did not know which of the two claimants was entitled to the money and prayed that the court require the orphanage to interplead in the action; that the insurance company be discharged from further liability on account of the policy and that it recover all of its costs and attorneys' fees. The fund was not tendered or paid into court by the company, nor, was it discharged.

On October 17, 1936, the Presbyterian Orphanage filed its answer alleging that, at the time of the issuance of the policy to Elmer Fitterling and M. S. Fitterling, Elmer owned an undivided three-fourths and M. S. Fitterling owned an undivided one-fourth interest in the property insured that Elmer Fitterling died on December 24, 1932; that Elmer Fitterling devised his interest in the property to M. S. Fitterling during his life and the remainder to the Orphanage in fee simple; that after the death of Elmer Fitterling and on January 9, 1933, M. D. Fitterling was appointed administrator, with the will annexed, of the estate of Elmer Fitterling, deceased, and duly qualified as such; that after said appointment plaintiff and M. S....