Goldsberry v. Farmers Mut. Fire & Lightning Ins. Co.

• Decision Date: 07 October 1935
• Docket Number: No. 5527.,5527.
• Citation: 86 S.W.2d 578
• Court: Missouri Court of Appeals
• Parties: GOLDSBERRY v. FARMERS MUT. FIRE & LIGHTNING INS. CO. OF POLK COUNTY, MO.

86 S.W.2d 578

GOLDSBERRY v. FARMERS MUT. FIRE & LIGHTNING INS. CO. OF POLK COUNTY, MO.

No. 5527.

Springfield Court of Appeals. Missouri.

October 7, 1935.

Appeal from Circuit Court, Hickory County; C. H. Skinker, Judge.

"Not to be published in State Reports."

Suit by L. M. Goldsberry against the Farmers Mutual Fire & Lightning Insurance Company of Polk County, Missouri. Judgment for plaintiff, and defendant appeals.

Affirmed.

George W. Goad, of Springfield, and Herman Pufahl, of Bolivar, for appellant.

Ralph B. Nevins, of Hermitage, Douglas & Douglas, of Bolivar, and Neale, Newman & Turner, of Springfield, for respondent.

ALLEN, Presiding Judge.

This case is based upon a fire insurance policy, issued by the Farmers Mutual Fire & Lightning Insurance Company, of Polk county, to L. M. Goldsberry, the plaintiff and respondent herein. The policy insured Goldsberry against loss or damage by fire in the sum of $500 on his frame dwelling house, and the sum of $50 on his frame smokehouse, and for the sum of $200 on his household goods, wearing apparel, and other personal possessions.

The petition was in two counts. The first count sought to reform the policy to properly describe the real estate on which the dwelling house and smokehouse were located. The court entered judgment, reforming the policy to properly describe the real estate, and no point is made by appellant on this action of the court.

Count two in the petition is in conventional form, alleging the corporate existence of the defendant, the issuance of the policy and the other matters and things alleged in count one. The petition then alleges that on the 15th day of January, 1933, the dwelling house and household furniture and personal property were totally destroyed by fire, and that the smokehouse was damaged to the extent of $10.

Plaintiff alleged the value of the property as follows: "Plaintiff further alleges that at the time of the fire hereinafter alleged he had an insurable interest in all of the property insured in said policy and in said attachment or rider; that said respective items of property were of greater value than the insurance thereon."

The defendant's answer pleaded that it was a farm mutual fire insurance company, organized under the statutes of Missouri, governing such companies. The answer further alleged that if the plaintiff had a policy of insurance, it was not in full force and effect at the time of the fire on January 15, 1932, for the reason that an assessment levied on the 28th day of November, 1931, by the defendant, notice of which was mailed on the 8th day of December, 1931, had not been paid, and that this assessment was known as assessment No. 78; and that the assessment must be paid within 30 days from December 8th, otherwise the policy became inoperative; and that the policy of the plaintiff had lapsed by reason of nonpayment of this assessment within 30 days. The answer then set out that after the fire, to wit, on the 22d day of January, plaintiff came to defendant's office and asked to pay assessment No. 78, and that he was allowed to pay this assessment because he was liable therefor in any event, and because he had insurance on other property named in the policy.

The plaintiff's reply was a general denial and a plea that the defendant, by accepting the $2 assessment paid on January 22, 1932, waived the right to set up the defense that the policy had lapsed, and became estopped to set up such a defense. Plaintiff further pleaded that the assessment was invalid.

Defendant's rejoinder or answer to the plaintiff's reply specifically denied the plaintiff's reply as to the payment of assessments and as to the waiver.

The first count of the petition was tried before the court and the policy reformed.

The second count, seeking to recover on the policy, as reformed, was tried before a jury and the jury returned a verdict in the sum of $730, which was $20 more than the amount sued for. The plaintiff remitted $20 on this verdict.

The defendant, in due time, filed its motion for new trial, which was overruled, and the cause comes to this court on appeal, by defendant.

It was admitted at the time of the trial that the defendant was a farm mutual fire insurance company and that the policy of insurance was issued on this basis, and that assessments were levied from time to time to pay losses occurring to policyholders.

The appellant admits that there is no question concerning the payment of any assessment up to assessment No. 76, which was levied on the 11th day of July, 1931. The question as to payment of assessments Nos. 76, 77, and 78 is a controverted question in the case. Assessment No. 77 was levied on the 10th day of October, 1931. The secretary of the company testified that on July 22, 1931, notice of assessment No. 76 was mailed out. That on October 20th, notice of assessment No. 77 was mailed, and on December 8, 1931, notice of assessment No. 78 was mailed, and that these notices were printed on postal cards and addressed to the policyholders, and dated as above set out, and placed in the United States mail.

The defendant's by-laws (section 8) is as follows: "The board of directors shall make assessments as often as they are necessary. Upon the order of the board the secretary shall execute the assessment, which shall be signed by the secretary and a majority of the board and filed in the office of the secretary; and when so filed shall be evidence in all places that the sums assessed are due the company from the persons against whom they are respectively assessed. Each member shall be assessed upon the basis of the valuation of his property protected by his contract at such rate per cent. as will when added to the amount of protection money on hand in the treasury pay off the losses. When such assessments shall have been completed the secretary shall prepare a circular, a copy of which he shall direct to each member of this company to his last known post office address, setting forth in such circular the amount due from such member and require him to pay such assessment to the secretary at his office within thirty days from date of such circular; the circular also containing the name of the loser for the payment of which the assessment is made, together with the amount awarded such loser. The mailing of such circular shall be deemed sufficient notice of his liability to pay. If any member shall neglect or refuse for the space of thirty days from the date of such circular to pay such assessment, thenceforth every such delinquent shall cease to have any right or claim against the company by reason of any contract or agreement for protection by said company. While any over-due assessment shall remain unpaid such contract shall be suspended until the payment of the same, and the secretary after personal demand has been made by an officer or member of this company shall proceed by civil suit to collect the same on behalf of the company, with 15 per cent. for collection, with costs of suit."

The secretary of the company further testified that Goldsberry, the respondent, did not pay assessment No. 76, within 30 days from the date of notice, and that therefore he was delinquent and no notice of assessment No. 77 was mailed to him, neither was the first notice of assessment No. 78 mailed to him on December 8th, because he was at this time delinquent on both assessments Nos. 76 and 77. He testified that it was the custom of the company, after the expiration of 30 days from the mailing of the first notice, if the assessment had not been paid, to send out a second notice.

Fron Porter, daughter of the secretary, who worked in the company's office, testified that on December 12, 1931, the plaintiff and respondent herein, came to the office of the company and paid assessments Nos. 76 and 77, which were $2 each, but that he did not pay assessment No. 78 at that time. That when the second notice of assessment No. 78 was sent out, shortly after January the 8th, the secretary mailed plaintiff the second notice of this assessment, and that on January 22d the plaintiff came to the office of the defendant with the second notice of assessment No. 78 and asked to pay it. She further testified that she had heard about his fire and hesitated to take the money, but inasmuch as the plaintiff was liable in any event, and because the plaintiff told her he wanted to keep the insurance in force on his other buildings, she receipted the card and handed it back to the plaintiff. She further testified the records of the company failed to show any payment of assessment No. 78. She testified that plaintiff came back later and told her that the board would not accept the $2 on assessment No. 78 and asked for the return of the money. That she laid the $2 on a table, but that he refused to pick the money up or take it with him. She further testified that on December the 12th Goldsberry came to the office of the defendant company and asked to pay his insurance. That she looked up the records and found he owed assessments Nos. 76, 77, and 78, but that the records showed that No. 78 was not delinquent, as the 30 days from the date of the mailing of the first notice had not elapsed, and this assessment did not become delinquent until January 8, 1932. She told the plaintiff that he owed for assessments Nos. 76, 77, and 78, $6 in all, and asked if he wanted to pay No. 78. That he said, "No," that he did not have the money. She further testified that she gave him a receipt for assessments No. 76 and No. 77, and wrote it down in the book. She testified that the plaintiff paid her $4 covering assessments Nos. 76 and 77, which were $2 each, and that he handed her four $1 bills at that time, stating that he did not have the money to pay No. 78.

Over the objections and exceptions of the defendant, plaintiff testified that the reasonable value of the house was from $750 to $800; and that the reasonable market value of the personal property was...