Fogle v. Fidelity-Phenix Fire Ins. Co. of New York

• Decision Date: 17 December 1937
• Docket Number: 35346
• Citation: 111 S.W.2d 154,342 Mo. 1
• Parties: J. Carl Fogle v. The Fidelity-Phenix Fire Insurance Company of New York, a Corporation, Appellant
• Court: Missouri Supreme Court

111 S.W.2d 154

342 Mo. 1

J. Carl Fogle v. The Fidelity-Phenix Fire Insurance Company of New York, a Corporation, Appellant

No. 35346

Supreme Court of Missouri

December 17, 1937

Appeal from Gentry Circuit Court; Hon. Thomas A. Cummins Judge.

Reversed and remanded.

Hogsett Murray, Trippe & Depping for appellant.

(1) The trial court erred in refusing defendant's demurrer to plaintiff's evidence and defendant's requested peremptory instructions 1, 6, 7, 8, 9, 10, 11, 12, 13, 14 15, 16, 17, 18, 19 and 21. There was a total failure to prove the cause of action alleged in the amended petition, in that plaintiff pleaded a certain written agreement to insure and did not prove it. Cole v. Armour, 154 Mo. 351; Highland Inv. Co. v. Scales Co., 277 Mo. 375; Koons v. St. Louis Car Co., 203 Mo. 255; Bay v. Wank, 215 Mo.App. 157; Phillips v. Thompson, 225 Mo.App. 865; McDonnell v. Stevinson, 104 Mo.App. 195; Haverstick v. Brookshire, 28 S.W.2d 432; Jones v. Hill, 18 S.W.2d 386. Upon the face of the pleadings the payment defense as to the first fire loss and the vacancy defense as to the last fire loss were admitted, because not denied by the reply. These defenses were not put in issue by the general denial in the reply, because it was followed by pleas of confession and avoidance. State ex inf. Hadley v. Delmar Jockey Club, 200 Mo. 65; Holt v. Hanley, 245 Mo. 360; Howey v. Howey, 240 S.W. 451; Cowell v. Employers' Indemnity Corp., 326 Mo. 1103, 34 S.W.2d 705. These two defenses were also conclusively established by the evidence. The claim for the first fire loss was fully paid and settled. The vacancy clause of the policy was concededly violated, because the insured buildings were vacant, unoccupied and uninhabited for five months and four days before the fire, without notice to defendant. The vacancy clause of the policy is valid and will be enforced according to its terms. Cook v. Insurance Co., 70 Mo. 610; Craig v. Springfield F. & M. Ins. Co., 34 Mo.App. 481; Wheeler v. Phoenix Ins. Co., 53 Mo.App. 446; Hoover v. Insurance Co., 93 Mo.App. 111; Walton v. Insurance Co., 162 Mo.App. 328; Dawson v. Insurance Co., 1 Mo.App. 317. The violation of the vacancy clause rendered the policy void whether the vacancy contributed to the fire or not. Kenefick v. Insurance Co., 205 Mo. 294; Hoover v. Insurance Co., 93 Mo.App. 120; Marcus v. Insurance Co., 187 Mo.App. 134; Harwood v. Insurance Co., 170 Mo.App. 307; Mathews v. Modern Woodmen, 236 Mo. 326. At the time defendant made offers of settlement to the Hardings the loss had already occurred and the respective rights and defenses of the parties had become fixed; therefore, said offers of settlement did not constitute a waiver of the violation of the vacancy clause. Doerr v. Natl. Fire Ins. Co., 315 Mo. 275; Curtis v. Indemnity Co., 327 Mo. 368; Guest v. Farmers Mut. Fire Ins. Co., 45 S.W.2d 116; Colonius v. Hibernia Fire Ins. Co., 3 Mo.App. 59; Gerhard Realty Co. v. Northern Assurance Co., 86 Mo.App. 600; Leigh v. Springfield F. & M. Ins. Co., 37 Mo.App. 549; Maddox v. German Ins. Co., 39 Mo.App. 204; Card v. Phoenix Ins. Co., 4 Mo.App. 428. These offers were in compromise, and on that ground alone they could not operate as a waiver of the vacancy defense. Doerr v. Insurance Co., 315 Mo. 276; Cook v. Continental Ins. Co., 70 Mo. 615; Fink v. Insurance Co., 60 Mo.App. 677. Defendant's retention of the premium on the policy did not operate as a waiver, because defendant was obliged to and did pay the mortgagee under the standard mortgage clause. Doerr v. Natl. Fire Ins. Co., 315 Mo. 276; 14 R. C. L. 1193; 26 C. J. 326; Harwood v. Ins. Co., 170 Mo.App. 304; Senor & Muntz v. Fire Ins. Co., 181 Mo. 114. The taking of an affidavit by defendant from the Hardings was not a waiver. This showed rather an intention not to waive the vacancy defense. Schwab v. American Yeomen, 305 Mo. 155; Allman v. Commercial Travelers, 277 Mo. 691. Defendant's payment of $ 1500 to the mortgagee was not a waiver, because under the independent contract created by the standard mortgage clause defendant was obligated to pay the mortgagee. Berry v. Ins. Co., 317 Mo. 1129; Mosby v. Ins. Co., 285 Mo. 243. (2) The trial court erred in refusing to admit in evidence the policy of insurance. The omission of the resident agent's counter-signature required by Section 5902, Revised Statutes 1929, did not invalidate the policy or render it inadmissible in evidence. Lumbermen's Mut. Ins. Co. v. Railroad Co., 149 Mo. 180; Shelby v. Conn. Fire Ins. Co., 218 Mo.App. 94; Continental Cas. Co. v. Monarch Transfer & Storage Co., 23 S.W.2d 213; Kantrener v. Penn Mut. Life Ins. Co., 5 Mo.App. 581; Continental v. Riggen, 31 Ore. 336, 48 P. 477; Mass. Bonding & Ins. Co. v. Home Life & Acc. Co., 119 Ark. 102, 178 S.W. 316; Phoenix Ins. Co. v. Seegers, 192 Ala. 103, 68 So. 905; State Mut. Fire Ins. Assn. v. Brinkley Stave Co., 61 Ark. 1, 31 S.W. 157, 29 L. R. A. 714; Swing v. Brister & Co., 40 So. 146; Violette v. Pa. Ins. Co., 92 Wash. 685, 159 P. 896, rehearing denied 161 P. 343; 1 Couch Cyclopedia of Ins. Law, sec. 99; 26 C. J. 58; Ocean Acc. & Guar. Corp. v. Paper Co., 162 Wis. 255, 156 N.W. 156; Hartford Ins. Co. v. Matthews, 102 Mass. 224; Kusnetsky v. Security Ins. Co., 313 Mo. 143. Even on plaintiff's belated theory of recovering upon an oral agreement, the policy was admissible to show the usual form of policy issued by defendant on farm risks. Defendant repeatedly insisted that the oral contract theory of the case was erroneous; but when plaintiff with the approval of the trial court shifted to that theory in the middle of the trial, defendant had the right to offer evidence on that theory. Tremayne v. St. Louis, 320 Mo. 129; First Natl. Bank v. Equipment Co., 221 Mo.App. 739. In a case where no policy is issued and only an oral contract is made, the law presumes that the parties intend the contract shall contain the usual conditions of the regular form policy. Swinney v. Conn. Fire Ins. Co., 8 S.W.2d 1092; Duff v. Fire Assn., 129 Mo. 464, Id., 56 Mo.App. 358; Vining v. Franklin Fire Ins. Co., 89 Mo.App. 322; Eames v. Home Ins. Co., 94 U.S. 629; 1 Cooley's Briefs on Ins. (2 Ed.), 556; 1 Couch's Cyclopedia of Ins. Law, sec. 81; Richards on Ins. (4 Ed.), sec. 67; 26 C. J. 78; Robinson v. Franklin Fire Ins. Co., 35 S.W.2d 638.

Crossan & Hall, F. P. Stapleton and DuBois, Miller & Beavers for respondent.

(1) The trial court did not err in refusing the peremptory instructions requested by defendant. Sec. 817, R. S. 1929; Fogle v. Fidelity Phenix Fire Ins. Co., 99 S.W.2d 521; Devore v. Franklin Ins. Co., 25 S.W.2d 132; Pritchard v. Conn. Fire Ins. Co., 203 S.W. 223; Harrison v. Lakenan, 189 Mo. 581; Pattison (2 Ed.) Mo. Pleading, sec. 121, p. 140; Hughes v. Abraham Lincoln Life Ins. Co., 84 S.W.2d 973; Tynes v. Terrill, 19 S.W.2d 505; Porter v. Equitable Life Assur. Co., 71 S.W.2d 766; Furren v. Haupt, 49 S.W.2d 53; Walton v. Carlisle, 281 S.W. 402; Bammert v. Kenefick, 261 S.W. 78; Young v. Levin, 31 S.W.2d 978; Ridenhour v. K. C. Cable Co., 14 S.W. 760; Wolfe's Execx. v. Lauman, 34 Mo. 575. The payment defense as to the first fire loss and the vacancy defense as to the last fire loss were not admitted, but were denied by the reply. 1 Houts Mo. Pleading & Practice, sec. 104, p. 180; Excelsior Steel Furnace Co. v. Smith, 17 S.W.2d 378; Woodson v. Williams, 204 S.W. 183; Sullivan v. Bank of Harrisonville, 293 S.W. 129; Adair v. K. C. Terminal Ry. Co., 282 Mo. 133; Fleming v. McMahon Contracting Corp., 45 S.W.2d 952. The evidence conclusively established a waiver of the vacancy defense. Senor v. Ins. Co., 181 Mo. 104; Wild Rice Lbr. Co. v. Royal Ins. Co., 108 N.W. 871; Fidelity Phoenix Ins. Co. v. School Dist., 174 P. 513; Security Ins. Co. v. Baldwin, 234 P. 348; Pallatine Ins. Co. v. Commerce Trust, 175 P. 930; Block v. Fid. & Guar. Co., 316 Mo. 278; Morrison v. Fidelity Ins. Co., 71 S.W.2d 816; Francis & Hunter v. A. O. U. W., 150 Mo.App. 347; Keys v. Knights & Ladies, etc., 174 Mo.App. 671; Daniel v. Aetna Life Ins. Co., 36 S.W.2d 688; Springfield Fire & Marine Ins. Co. v. Cockrell Holding Co., 169 P. 1060. (2) The trial court did not err in refusing to admit in evidence the policy of insurance. (a) An oral contract of insurance is valid. Edwards v. School Dist. No. 73 of Christian County, 29 S.W. 1001; Bailey v. James School Dist., 77 S.W.2d 1017; Bailey v. St. Joseph Fire & Marine Ins. Co., 73 Mo. 371; Bird v. Moore, 66 Me. 337; Devore v. Franklin Ins. Co., 25 S.W.2d 131; Robinson v. Franklin Ins. Co., 35 S.W.2d 635. (b) The policy, defendant's Exhibit F not being countersigned, as required by Section 5902, Revised Statutes 1929, was not admissible in evidence. Cravens v. Insurance Co., 148 Mo. 583; McKinney v. Insurance Co., 270 Mo. 316; Head v. New York Life Ins. Co., 241 Mo. 406; Ward v. Iowa State Ins. Co., 4 S.W.2d 895; McNab v. Niagara Fire Ins. Co., 22 S.W.2d 364; Shelby v. Conn. Fire Ins. Co., 218 Mo.App. 84; Royal Exchange v. Almon, 202 Ala. 374, 80 So. 456; Badger v. American Poplar Co., 103 Mass. 244; Newcombe v. Provident Fund Society, 38 P. 61; Rogers v. American Natl. Ins. Co., 145 Ga. 470; Sparks v. Maux, 148 P. 926; Grady v. Am. Central Ins. Co., 60 Mo. 117; Home Ins. Co. v. Moberly, 157 P. 324. Under Section 5774, Revised Statutes 1929, a life insurance company is required to insert in or attach to each policy issued by it a copy of the application for the insurance. Under this statute, the courts have uniformly held that unless the statute is complied with, and the application, or its substance attached to the policy, the application will be excluded as evidence. Hicks v. Met. Life Ins. Co., 196 Mo.App. 162; Schulen v. Met. Life Ins. Co., 191 Mo.App. 62; Clay v. Insurance Co., 216 Mo.App. 299. Under the Statute of Frauds, no action can be maintained unless...