Fleming v. Insurance Co. of North America

• Decision Date: 02 May 1932
• Docket Number: No. 17469.,17469.
• Citation: 50 S.W.2d 177
• Parties: FLEMING v. INSURANCE CO. OF NORTH AMERICA.
• Court: Missouri Court of Appeals

50 S.W.2d 177

FLEMING v. INSURANCE CO. OF NORTH AMERICA.

No. 17469.

Kansas City Court of Appeals. Missouri.

May 2, 1932.

Rehearing Denied May 23, 1932.

Appeal from Circuit Court, Atchison County; D. D. Reeves, Judge.

"Not to be officially published."

Action by Myrl Fleming against the Insurance Company of North America. From judgment for plaintiff, defendant appeals.

Affirmed.

Fenton Hume, of Kansas City, for appellant.

Clayton Allen, of Rockport, for respondent.

BOYER, C.

Plaintiff sued upon a policy issued to him by defendant to recover the total sum of $1,500. The policy afforded coverage for loss by fire in the sum of $200 on merchandise and in the sum of $1,300 on furniture and fixtures. Subsequent to the date of the policy there was a total loss. The company declined payment and plaintiff sued. There is no question as to the sufficiency of the petition. The defense tendered by the answer, and which is now relied upon, is that the furniture and fixtures were subject to a chattel mortgage executed by plaintiff and in existence prior to and at the time the policy was issued, and that this rendered the policy void in accordance with its express terms, to wit: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto shall be void * * * if the subject of insurance be personal property and be or become incumbered by a chattel mortgage."

The reply admits the quoted provision of the policy, and admits the existence of the chattel mortgage on the furniture and fixtures as alleged; and in effect pleads a waiver of the policy provision by alleging that defendant had knowledge of the chattel mortgage when it issued the policy.

It was agreed that the mortgage in question covered only furniture and fixtures and did not cover the merchandise described in the policy; and it was agreed that the value of the furniture and fixtures was $1,500, and that the value of the merchandise was $175.

After the introduction of evidence by both parties, the case was submitted to the jury and the issue of notice or no notice of the existence of the chattel mortgage to the agent of the company at the time he wrote the policy was tendered by instructions offered by plaintiff and defendant. The verdict was for plaintiff in the sum of $1,475. Defendant duly appealed.

Appellant urges error on the part of the court in giving plaintiff's instructions 1 and 3, and in refusing defendant's instructions 2 and 5. Plaintiff's instructions submitted the issue of the knowledge of defendant and of its agent of the existence of the chattel mortgage at the time the policy was written; and defendant's instructions, which were refused, sought to inform the jury that under the pleadings and the evidence plaintiff was not entitled to recover for the loss of furniture and fixtures; and, further, that notice to the agent prior to his appointment, and under the circumstances shown in evidence, was not notice to the defendant. The brief in three subdivisions presents in substance only one question, and that is the sufficiency of the evidence to support a finding of notice or knowledge on the part of the defendant.

There was ample evidence for the jury to determine that the agent had actual knowledge of the mortgage prior to his...