Fletcher v. North British & Mercantile Ins. Co., 52899

• Court: Missouri Supreme Court
• Writing for the Court: HOLMAN
• Citation: Fletcher v. North British & Mercantile Ins. Co., 425 S.W.2d 159 (Mo. 1968)
• Decision Date: 11 March 1968
• Docket Number: No. 52899,52899
• Parties: George R. FLETCHER and Arlene L. Fletcher, Plaintiffs-Respondents, v. NORTH BRITISH AND MERCANTILE INSURANCE COMPANY, Limited, a Corporation, the Mercantile Insurance Company of America, a Corporation, and Hartford Fire Insurance Company, a Corporation, Defendants-Appellants.

Page 159

425 S.W.2d 159

George R. FLETCHER and Arlene L. Fletcher, Plaintiffs-Respondents, v. NORTH BRITISH AND MERCANTILE INSURANCE COMPANY, Limited, a Corporation, the Mercantile Insurance Company of America, a Corporation, and Hartford Fire Insurance Company, a Corporation, Defendants-Appellants.

No. 52899.

Supreme Court of Missouri, En Banc.

March 11, 1968.

Lincoln, Haseltine, Forehand & Springer, Edmund C. Forehand, Carl E. Yates, Horace S. Haseltine, Springfield, for plaintiffs-respondents.

Allen, Woolsey & Fisher, Russell G. Clark, Springfield, for defendants-appellants.

HOLMAN, Chief Justice.

Plaintiffs owned and operated a barbecue restaurant in Springfield, Missouri, known as 'The Hickory Pit.' On October 19, 1963, the building and contents of the restaurant were damaged by fire. In this action on insurance policies carried with the defendants, plaintiffs obtained a judgment for $10,184.27 on Count I, and $5,320 on Count II, together with interest from February 10, 1964. Defendants appealed to the Springfield Court of Appeals. That court adopted an opinion which (with slight modifications) affirmed the judgments. On application of defendants we ordered the case transferred to this court. It will be determined here 'the same as on original appeal.' Civil Rule 84.05(h) ¹ and Mo. Const. Art. V, § 10, V.A.M.S.

The policy plaintiffs carried with defendant North British and Mercantile Insurance Company insured the building and its contents. Their policy with the Hartford Fire Insurance Company insured against loss sustained by the interruption of their business. Plaintiffs submitted proofs of loss to the adjustor for the insurance companies on December 12, 1963. These proofs were rejected by the insurers on February 3, 1964, for the reason that they did not conform with the provisions of the policies in certain respects, and under date of February 11, 1964, proofs were resubmitted by plaintiffs to the insurers. The North British policy contained a provision for arbitration and appraisal. Plaintiffs invoked the appraisal provision and, in accordance with the policy, each party appointed an appraiser and those two selected an umpire for the purpose of appraising the damages. Two of the three selected subsequently agreed on damages totaling $3,781.57 on the building and its contents. North British tendered a draft to plaintiffs in the aforementioned amount but plaintiffs rejected the tender and returned the draft to said defendant. Shortly thereafter this suit was filed.

The fire here involved was located in the area of the barbecue pit. The pit was substantially destroyed and heavy smoke and considerable heat caused damage to the furnishings and the interior paneling and floor covering of the building. We see no reason to make a detailed statement of the evidence relating to the damages. Prior to the trial the parties stipulated that the measure of damage to the furnishings and interior of the building 'shall be based upon the cost of restoring the aforementioned items to substantially their previous condition.' Some of the items of damage were stipulated to, and there was considerable evidence offered concerning the condition of the property after the fire and the cost of restoring it to its previous condition. It is perhaps sufficient to say that the evidence offered by plaintiffs was sufficient to support the findings and judgment of the court on Count I.

As to the damages sustained because of interruption in plaintiffs' business, it was stipulated that plaintiffs were entitled to receive $70 per day for each day required, 'with the exercise of due diligence and dispatch, to repair and restore the premises so that business could be resumed.' There was evidence to indicate that immediately after the fire plaintiffs began obtaining bids and employing workmen to clean and repair the premises. Plaintiffs sought in the petition to recover damages for 73 days' interruption of the business. Plaintiff George Fletcher testified at one time that he opened the business on December 30, 1963, and in another place in his testimony stated that it was reopened on January 3, 1964, which latter date would indicate that the business was closed 76 days. Defendant Hartford, throughout the trial, contended that the plaintiffs, in the exercise of due diligence, could have had the premises cleaned and repaired so that the business could have been reopened in a much shorter period of time. The evidence also indicated that some of the items that had been damaged had not been repaired or replaced at the time of trial.

The case was tried before the court without the use of a jury. Prior to the beginning of the trial the defendants requested that the court prepare and file a brief opinion containing a statement of the grounds for its decision, and the method of determining any damages awarded, as provided in Civil Rule 73.01(b).

At the conclusion of the trial the court took the case under advisement and on December 1, 1965, entered a judgment for plaintiffs in the amount of $10,185.02, with interest, on Count I and $5,326, with interest, on Count II. The court denied the claim of plaintiffs for attorney fees and damages for vexatious delay. On December 8, 1965, defendants filed a motion to set aside the judgment and grant defendants a new trial in which they complained, among other things, of the failure of the trial court to file the written opinion which had been requested, and also complained of an alleged error in computing the damages allowed in Count II. On December 31, 1965, the court, of its own motion, set aside the judgment of December 1 'for the reason that the court had not filed findings of fact and conclusions of law prior to its entry of said judgment, and that the court erred in its computation of damages on Count II.' On January 12, 1966, the court entered a new judgment for plaintiffs in the sum of $10,184.27, with interest, on Count I, and $5,320 with interest, on Count II. Prior to entering said judgments the court filed findings of fact and conclusions of law.

On January 19, 1966, defendants filed a new motion for new trial and upon said motion being overruled duly appealed. This case has recently been reassigned to the undersigned.

The first contention of defendants is quoted from their brief as follows: 'The trial court erred in entering a judgment on Counts I and II of plaintiffs' petition on January 12, 1966, for the reason that the court had no jurisdiction to render such judgment because it was rendered more than thirty days after the original judgment was rendered on December 1, 1965.' We fail to see any merit in that contention. Civil Rule 75.01 provides, in part, as follows: 'The trial court retains control over judgments during the 30 day period after entry of judgment and may vacate, reopen, correct, amend or modify its judgment for good cause within that time.' When the trial court entered its judgments of December 1, 1965, it overlooked the fact that a request for findings had been made, and it had also made a slight mathematical error in computing the amount of the judgment on Count II. Thereafter, the court became aware of the said error and omission and evidently decided to correct same. It accordingly, of its own motion, set aside the judgments of December 1. That order was made within the 30-day period following entry of the judgments and was clearly authorized by Civil Rule 75.01. The order shows on its face that there was 'good cause' for making it.

After the judgments were set aside the case was again under submission, or, as sometimes stated, restored to the breast of the court, in the same manner as though the judgments of December 1 had never been entered. In that situation the trial court undoubtedly had the jurisdiction to later enter the judgments appealed from.

In support of their contention defendants have cited Salle for Use and Benefit of Mandel v. Holland Furnace Co., Mo.Sup., 337 S.W.2d 87, Snyder v. Christie, Mo.App., 272 S.W.2d 27, and Jaeger v. Agnew, Mo.App., 252 S.W.2d 847. None of those cases are applicable to the situation before us. The Salle and Snyder cases both involved orders setting aside judgments after the 30-day period had elapsed. In the Jaeger case the court set aside a judgment entered on a jury verdict and sought to enter its own judgment in a different amount which, of course, is not permissible. As indicated, we rule this point against defendants.

The next point briefed by defendants is that the court erred in entering its judgments of January 12, 1966, because it had failed to timely file its findings of fact and conclusions of law prior to the rendition of its original judgment on December 1, 1965. We are unable to see any merit in that contention. As we have heretofore said, when the first judgments were set aside the situation was the same as if they had never been entered. Findings were filed before entry...