Florea v. Iowa State Ins. Co.

• Decision Date: 05 November 1930
• Citation: Florea v. Iowa State Ins. Co., 225 Mo.App. 49, 32 S.W.2d 111 (Mo. App. 1930)
• Parties: W. F. FLOREA, AND JOHN FAHEY, TIM FAHEY, AND ALPH FAHEY, A CO-PARTNERSHIP, DOING BUSINESS UNDER THE FIRM NAME OF FAHEY BROS., RESPONDENTS, v. IOWA STATE INSURANCE CO., A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

32 S.W.2d 111

225 Mo.App. 49

W. F. FLOREA, AND JOHN FAHEY, TIM FAHEY, AND ALPH FAHEY, A CO-PARTNERSHIP, DOING BUSINESS UNDER THE FIRM NAME OF FAHEY BROS., RESPONDENTS, v. IOWA STATE INSURANCE CO., A CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

November 5, 1930

Appeal from the Circuit Court of Knox County.--Hon. Paul D. Higbee Judge.

AFFIRMED.

Judgment affirmed.

E. L Snider and J. D. Dorian for appellant.

(1) It appears that Mr. Florea, one of plaintiffs, was not in any way interested in the litigation at the time the case was tried, according to his own statement, and the finding of facts; the Practice Act requiring an action to be brought and maintained in the name of the real party in interest, and judgment in his favor is erroneous.Megher v Stewart,6 Mo.App. 498;Cohen v. Guardian Assurance Co.,68 Mo.App. 376.(2) There isn't any evidence to show there was a debt due the mortgagee at the time of the trial, or if so, the amount due or the amount of their interest, if any; and judgment in favor of mortgagees is not supported by any evidence.(3) When the policies became void because of the contract made by Mr. Florea, and because of the vacancy, they remained void, and were not reinstated, and because of the contract, there was no insurable interest remaining in Mr. Florea to support a contract, and a contract was not revived, if any when the said contract expired.Marcus v. Rhode Island Ins. Co.,187 Mo.App. 134;Mahan v. Home Ins. Co.,205 Mo.App. 592;Snyder v. Murdock,51 Mo. 134;Wisecup v. Ins. Co.,186 Mo.App. 310;Cook v. Continental,70 Mo. 610.(4) The allowance of penalty and attorney's fee was unwarranted in fact and in law.Blackwell v. Ins. Co.,80 Mo.App. 78;Rogers v. Ins. Co.,157 Mo.App. 621;Aetna Ins. Co. v. Levy, 35 F.2d 763.

Claude M. Smith and Brown, Gibbons & Brown for respondents.

(1) On the question of occupancy, the evidence shows that Linson had considerable furniture still in the house on the date of the fire and that he slept there on the night of March 20, 1929, and was there on the morning of March 21, 1929.A residence is neither vacant or unoccupied so long as there is furniture therein and that the one who has a right to occupay it sleeps there occasionally.Smith v. Aetna Insurance Co.,269 S.W. 685;Norman v. Insurance Co.,74 Mo.App. 456.(2) As to change of ownership the evidence shows that the contract for sale from W. F. Florea to Murphy was void at its inception, as it sought to bargain for the conveyance of an estate held by the entirety without the signature of the wife of W. F. Florea.Conveyance by one tenant by the entirety is wholly void, even as to the one conveying.I. R. Goldberg Plumbing Supply Co. v. Taylor,237 S.W. 900;Mahen v. Ruhr et al.,240 S.W. 164;Stifel's Union Brew. Co. v. Saxey et ux.,273 Mo. 159.(3)Parties in interest.The insurance contract shows loss, if any, payable to Florea and Fahey Brothers, mortgagees, as their interests may appear.Defendant was liable to them jointly, as they both had an insurable interest and a legal right in the sum recoverable.It is undisputed that Florea remained the owner and Fahey Bros. the mortgagees to the date of the fire, at which time their respective property rights became fixed and there was no subsequent assignment of interest under the policy.If the defendant is liable under the policy then the present action will bar any further recovery under the policy and defendant cannot be harmed even were an extra party made a plaintiff.Matthews v. Mo. P. R. R.,142 Mo. 658.(4) Estoppel of defense.It is undisputed evidence that the defendant insurance company received from the plaintiff Florea, on or about February 25, 1929, a check in the sum of $ 25.20 as premium on the contract in suit to January 26, 1930; that the defendant participated in the deposition of witness Linson on October 11, 1929, where both the merits of the purported sale contract between Florea and Murphy and the facts as to occupancy, were fully gone into, but at no time even to this date, has defendant tendered back the unearned premium and it is now estopped from setting up either vacancy or change of ownership as a defense.Luthy v. Northwestern Natl. Ins. Co.,20 S.W.2d 199(also passed upon by Supreme Court, in same volume at page 46);Leer v. Con. Insurance Co.,250 S.W. 631, and authorities therein cited.

BENNICK, C. Haid, P. J., and Becker and Nipper, JJ., concur.

OPINION

BENNICK, C.

This is an action upon a policy of fire insurance.Tried to the court without the aid of a jury, a judgment was rendered in plaintiff's favor for the aggregate sum of $ 2794.60, representing the full face value of the policy, with interest thereon at the rate of six per cent. from March 30, 1929, the date of the loss, together with an allowance of the ten per cent. penalty and the sum of $ 500 as attorney's fees for vexatious delay.A motion for a new trial was filed and overruled, following which the defendant has duly appealed the case to this court.

The policy was issued by defendant to one Elliott, insuring the property described therein against loss by fire or windstorm in the sum of $ 2000, for a period of five years, beginning January 26, 1927, and expiring January 26, 1932.Attached to and forming a part of the policy was a loss-payable clause, providing that the loss should be adjusted with the insured, and should be payable to the insured and to Fahey Bros., mortgagees, as their respective interests might appear.

Among the several clauses of the policy was the provision that the entire policy should be void if the interest of the insured be other than an unconditional and sole ownership; if the subject of the insurance be a building on ground not owned by the insured in fee simple; if any change, other than by the death of the insured, took place in the interest, title, or possession of the subject of the insurance; or if the building therein described, whether intended for occupancy by the owner or a tenant, should be or become vacant or unoccupied, and so remain for ten days.

Thereafter the property was sold by Elliott to one Klote, on March 17, 1928, by whom it was in turn conveyed by general warranty deed to plaintiff Florea and Nellie M. Florea, his wife, subject, however, to the deed of trust theretofore executed in favor of Fahey Bros., mortgagees.In each instance an assignment of the policy was duly made and consented to by defendant company, the assignment to Florea having been recognized by the company, through its secretary, on June 5, 1928.

There is no dispute about the fact that the building was totally destroyed by fire on the night of March 30, 1929, nor is there any question about the payment of the premiums, or the making of proof of loss.

Florea has sued as the insured and owner of the property described in the petition at the time of the loss, while Fahey Bros. have been joined as parties to the action by virtue of being mortgagees, with an interest in the proceeds under the loss-payable clause.

The sufficiency of the petition for an action of this character is not brought into question.

Two defenses were interposed and relied upon by defendant in its answer, the first of which was that the policy was void, in that Florea, before the loss was sustained, had executed a contract of purchase and sale with one Murphy; that Florea was therefore not the unconditional and sole owner of the property; that he had ceased to be the owner thereof; that the subject of the insurance became and was a building situated on land not owned by the insured in fee simple; and that on account of the change in title, interest, and possession, the policy under its terms was rendered void.

The second defense was that the property became and remained vacant and unoccupied for more than ten days prior to the fire, on account of which fact the policy became null and void.

The reply was a denial of the new matter set up in the answer.

At the termination of the case, findings of fact and conclusions of law were filed by the court at the request of the plaintiffs, and judgment was rendered in the form and manner that we have heretofore indicated.

Material facts, other than those already mentioned, will be hereinafter noted in connection with particular points arising for decision.

In support of its contention that the judgment of the lower court may not be sustained upon any theory in the case supported by substantial evidence, the same propositions are brought to our attention as were urged by the company as defenses below.

Considering these matters in their inverse order, we have the argument that there was a breach of that condition of the policy providing that the same should be void if the building described therein, whether intended for occupancy by the owner or his tenant, should be or become vacant or unoccupied, and so remain for ten days.

Upon this point the evidence disclosed that the premises had been let to one Linson; that he had rented a farm known as the Cabeen Farm, and in March, 1929, prepared to move from the premises of the insured; that prior to March 10th, Linson's wife had gone to visit her parents, and had taken the two children along with her; that after said date, neither she nor the children lived on the Florea farm; that Linson himself ate his meals and slept at the home of his wife's parents, save for the night of March 20th, when he slept in the insured premises; that he began moving his household effects away as early as March 17th, and moved the last load on March 28th, two days before the fire; and that certain articles of his furniture were yet in the house at the time of the fire, and were totally destroyed with it.

As we view the record, the finding of the trial...