Frick v. Millers' Nat. Ins. Co.

• Decision Date: 05 July 1919
• Docket Number: No. 21287.,21287.
• Citation: 279 Mo. 156,213 S.W. 854
• Parties: FRICK v. MILLERS' NAT. INS. CO.
• Court: Missouri Supreme Court

213 S.W. 854

279 Mo. 156

FRICK v. MILLERS' NAT. INS. CO.

No. 21287.

Supreme Court of Missouri, Division No. 2.

July 5, 1919.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

Action by S. A. Frick against the Millers' National Insurance Company. Judgment for defendant, and plaintiff appeals. Appeal dismissed.

Fyke & Snider, of Kansas City, Peyton Parks, of Clinton, and Fenton Hume, of Kansas City, for appellant.

Barger & Hicks, of Chicago, Ill., and White, Hackney & Lyons, of Kansas City (Bates, Hicks & Folonie, of Chicago, Ill., of counsel), for respondent.

WILLIAMS, P. J.

This is an action at law to recover an alleged $8,000 loss under a fire insurance policy. Trial was had in the circuit court of Jackson county before the court sitting as a jury, which resulted in a judgment for defendant. `Thereupon plaintiff duly appealed to this court.

This case upon practically the same facts, but in a somewhat different form, was before this court before. Frick et al. v. Millers' National Insurance Co., 184 S. W. 1161.

Appellant's brief contains no assignment of errors. In his brief under the head of "Points and Authorities" we find the following:

"I. Plaintiff is entitled to recover on the undisputed facts.

"II. When the policy was transferred to plaintiff by the Caney Company, the original insured, defendant was notified of the transfer, and requested to substitute plaintiff as insured, and only the formal part of transfer remained to be arranged. The policy then became a new contract between plaintiff and defendant. Instruction 2 to this effect should have been given— instruction 5. Fein v. Ins. Co., 42 Mo. 39, loc. cit. 41, 97 Am. Dec. 291; King v. Ins. Co., 195 Mo. 290, loc. cit. 307, 92 S. W. 892, 113 Am. St. Rep. 678, 6 Ann. Cas. 618; Andrus v. Ins. Co.. 168 Mo. 151, loc. cit. 165, 67 S. W. 582; Millis v. Ins. Co., 95 Mo. App. 211, 68 S. W. 1066; Ins. Co. v. McCrea, 8 Lea (Tenn.) 513, 41 Am. Rep. 647; Bayless v. Ins. Co., 106 Mo. App. 684, 80 S. W. 289; Planters' Mut. Ins. Co. v. Southern S. F. Co., 68 Ark. 8, 56 S. W. 443.

"III. The policy permitted 60 days' vacancy or nonoperation, and that length of time bad not elapsed after plaintiff became the owner and insured when the fire occurred—instruction 3.

"IV. Plaintiff 14 not bound by acts of the Home National Bank in its dealings with defendant; the contract between said bank as mortgagee and defendant being a separate contract from the one between plaintiff and defendant, and there is no evidence said bank had authority to act for plaintiff—instruction 4. Morrow v. Lancashire Ins. Co.. 29 Ont. 377."

Rule 15 of this court (as amended October 23, 1917. See Supreme Court Rules on page 3 of supplement to 270 Mo., 198 S. W. vi), provides, among other things, that

"The brief for appellant shall distinctly allege the errors committed by the trial court. * * * No brief * * * which violates...