Gillespie v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 17 February 1913
• Citation: 153 S.W. 1079
• Court: Missouri Court of Appeals
• Parties: GILLESPIE v. ST. PAUL FIRE & MARINE INS. CO.

153 S.W. 1079

GILLESPIE v. ST. PAUL FIRE & MARINE INS. CO.

Kansas City Court of Appeals. Missouri.

February 17, 1913.

1. EVIDENCE (§ 207) — ADMISSIONS — OBJECTIONS TO EVIDENCE.

The only ground of an objection to the introduction of an assignment being that it was inadmissible because made after the action was instituted, the objection is in effect a concession of the assignment.

2. PARTIES (§ 59) — AMENDMENT — CHANGE OF INTEREST AFTER ACTION BROUGHT.

Where action on an insurance policy, issued in the name of G., owner of the property, as assured, but with provision for payment of loss to B., mortgagee, as his interest may appear, is begun by G. and B., but thereafter G. settles with B. and B. transfers his interest to G., it is proper practice to file an amended petition dropping B., and stating the facts; Rev. St. 1909, § 1924, providing that, when interest in a pending action is transferred, the court may allow the person to whom the transfer is made to be substituted in the action.

3. INSURANCE (§ 675) — BAD FAITH IN DEFENSE — ATTORNEY'S FEE.

Plaintiff, in an action on a fire policy, may be allowed an attorney's fee, there being evidence of a want of good faith in the defense; a special agent having written the insurer that it was liable, but he thought it best to make a show of contest, to force a compromise.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

Action by Thomas A. Gillespie against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Barclay, Fauntleroy, Cullen & Orthwein, of St. Louis, for appellant. E. M. Harber, of Trenton, and Eldon C. Orton, of Princeton, for respondent.

ELLISON, P. J.

This action is on a policy of fire insurance for $1,000. Plaintiff obtained judgment in the trial court.

It appears that plaintiff was indebted to one Buren, who held his note for $1,250 and mortgage to secure it on hotel furniture owned by plaintiff; that he had a policy on such furniture issued by this defendant for $1,000, loss, if any, payable to Buren, mortgagee, as his interest might appear; that policy expired, and within a few days thereafter, on the 31st day of May, 1911, defendant's agent called on plaintiff and solicited him to renew it. Plaintiff then paid the balance of premium on the old policy, which to this time had remained unpaid, and stated to the agent that he wanted the policy, but did not have the money (eighteen dollars) with which to pay the premium, and for the agent to go to Buren "and he will take the policy. He can't afford to let it expire and won't."

There is very little evidence in the case. It consists of the testimony of plaintiff himself and some written reports of the agent to the company and some letters from the company to the agent. It seems that the agent went to Buren and got the premium for the new policy. Neither of them were witnesses. But certain it is the policy was issued in plaintiff's name as the assured, "the loss if any payable to Buren, mortgagee, as his interest might appear." Buren must have paid the premium, for it was shown to have been sent to defendant in one of the reports, and the policy was delivered to him, for it is so alleged in the petition, or, what is the same thing in legal effect, the agent may have accepted his promise and advanced the premium to defenda...