Gordon v. National Ins. Co.

• Citation: 77 S.W.2d 512
• Decision Date: 24 December 1934
• Docket Number: No. 5469.,5469.
• Court: Court of Appeal of Missouri (US)
• Parties: A.J. GORDON, APPELLANT, v. THE NORTHWESTERN NATIONAL INSURANCE COMPANY, A CORPORATION OF MILWAUKEE, WISCONSIN, RESPONDENT.

77 S.W.2d 512

A.J. GORDON, APPELLANT, v. THE NORTHWESTERN NATIONAL INSURANCE COMPANY, A CORPORATION OF MILWAUKEE, WISCONSIN, RESPONDENT.

No. 5469.

Springfield Court of Appeals. Missouri.

December 24, 1934.

Appeal from Jasper County Circuit Court. — Hon. William J. Owen, Judge.

AFFIRMED.

John J. Wolf for appellant.

Mercer Arnold for respondent.

SMITH, J.

This is an appeal from a judgment rendered in favor of the defendant at the January term, 1934, of Circuit Court of Jasper County.

The case was tried upon an amended petition consisting of two counts. The first count was to recover the sum of two thousand two hundred fifty ($2250) dollars for the alleged failure of the defendant to repair the dwelling house owned by the plaintiff, and which had been damaged by fire on the 9th day of November, 1931. The second count was an attempt to recover two hundred fifty ($250) dollars damages caused by the inability of the plaintiff to rent said house after the damage caused by the fire.

We do not set out the pleadings here, but the policy of insurance was attached to the pleadings and was offered in evidence. We shall set out such parts of the pleadings and the policy as we deem necessary in the opinion.

Trial was had before the court without a jury, and judgment on both counts was had for the defendant. The plaintiff was cast on his motion for new trial, and the case is before us.

The plaintiff in his statement of facts says, "For the purpose of any statement of facts in this case, appellant adopts the statement of facts as embodied in the agreed statement of facts submitted in evidence and read into the record, by agreement of the parties at the trial of this cause."

This agreed statement of facts is as follows:

"A STIPULATION OF PARTIES ON AGREED FACTS

"MR. ARNOLD: For the purpose of expediting the trial of this cause, the parties hereto stipulate and agree that the evidence in said cause will show the following facts concerning which there is no dispute: (First) That the plaintiff was at all times hereinafter mentioned the owner of Lot No. 11 in Murphy's Addition to Joplin, Jasper County, Missouri, on which was located a dwelling house known as No. 2109 Connor Avenue; that the defendant is a corporation organized and existing under the laws of Wisconsin, engaged in business in Joplin, Missouri, as an insurance company, engaged in writing fire insurance policies; that on the 19th day of March, 1931, the defendant issued and delivered to the plaintiff its policy of insurance, which it is agreed will be admitted in evidence for a premium of $34.25 paid by the plaintiff, in which policy it was agreed that the defendant insured the dwelling house above mentioned for the sum of $2,500 against loss by fire from noon March 19, 1931, to noon March 19, 1934, and would pay the same in sixty days after notice and proof of loss according to the terms of said policy. That on the 9th day of November, 1931, and while said policy of insurance was in force, the said house was partially destroyed by fire; that the plaintiff thereafter, and in due time, gave notice and proof of said loss to the defendant company and its agent at Joplin, Missouri.

"It is further agreed that the plaintiff and defendant were unable to agree among themselves as to the extent of the damages to said property, and that thereupon, in accordance with the terms and provisions of said policy, the plaintiff, and defendant acting through its agent, entered into a written agreement for appraisal of said damages, which written agreement is to be offered in evidence, and agreed upon the selection of two appraisers to inspect said property and determine the loss or damage to same and the cost of making repairs to said damaged building. That plaintiff selected John S. Phillips as his appraiser and the defendant selected Trueman E. Martinie; that the two appraisers thereupon selected E.F. Speck as umpire; that the three thereupon qualified, examined said property and determined the sound value thereof together with the expense of repairs and loss or damage sustained, and made their written report, which is to be offered in evidence. That on the 15th day of December, 1931, the defendant, through its resident agent at Joplin, Missouri, mailed to plaintiff, by registered mail, at his address in Joplin, Missouri, its draft No. 21554 in the sum of $1,106.05, made payable to plaintiff and O.H. Gentry, trustee, and Louaddio Ping Feroglia, mortgagee, which letter was forwarded to plaintiff, who was then at Skiatook, Oklahoma, and was at a later date received by plaintiff and by him brought to Joplin and turned over to his attorney, John J. Wolfe; and that on the 8th day of January, 1932, or thereafter, plaintiff's said attorney, under instructions of the plaintiff, returned said draft or check so made out by defendant insurance company and tendered to the plaintiff and returned said draft to the defendant, together with the letter thereto attached of the same date, which will be introduced in evidence.

It is further agreed that on the date the policy of insurance in question was issued by the defendant to the plaintiff the property described in said policy of insurance was incumbered by a deed of trust given by one J.R. McPeak, a former owner, to J.H. Spencer, Trustee for Overton H. Gentry, and dated October 18, 1911, and recorded in the office of the Recorder of Deeds of Jasper County, Missouri, on October 24, 1911, in Book 133 at page 82, and that said deed of trust was given to secure the payment of a note of said J.R. McPeak in the sum of $1,600, due and payable on the 18th day of October, 1915; that upon the date of the fire above mentioned said mortgage was valid and a subsisting lien upon said property; that said indebtedness amounted to $1,600 with some interest; that said note had been by the named payee therein transferred and endorsed and assigned to various parties; and upon the date of said fire Louaddio Ping Feroglia, formerly Louaddio Ping, was the owner and holder of said note and deed of trust. That said policy of insurance at the time of its issuance contained and there was attached thereto a standard mortgage loss clause, as will more fully appear from the policy of insurance to be introduced in evidence; that said standard mortgage loss clause had been upon said policy at all times and that Louaddie Ping Feroglia was the assignee of O.H. Gentry, the named payee in said note. That after the receipt of the letter of January 8, 1932, Louaddie Ping Feroglia instituted a suit in the Circuit Court of Jasper County, Missouri, to recover the amount of insurance evidenced by the amount of her note or deed, to-wit, the sum of $1,600; that the said suit was heard at the April term, 1932, in Division No. 1 of the Circuit Court of Jasper County, Missouri, and a judgment entered in favor of Louaddio Ping Feroglia against this defendant in the sum of $1,106.05, and that said judgment was subsequently paid and satisfied by this defendant. And it is agreed that the entire record and pleadings in the case of Louaddio Ping Feroglia v. The Northwestern National Insurance Company of Milwaukee, Wisconsin, shall be considered introduced in evidence in this case.

"MR. WOLFE: For the purpose of any competent evidence appearing from the files and record in said case, if any, competent and admissible as a defense in this case, and subject to any objection on the part of the plaintiff as to the competency of the same in this case.

"BY THE COURT: If you are limiting the introduction and observation of the files in that case, I think you had better offer such as you wish and make your objection to them so as to keep your record straight.

"MERCER ARNOLD: Mr. Wolfe's objections is to the entire proceeding.

"BY THE COURT: If you admit that they may be accepted as a part of the evidence in this case, and then limit your objections, your record will be silent as to which particular part you limit it, unless the offer is made and objection made and ruling of court made.

"BY MR. ARNOLD: We are offering the entire record and pleadings and Mr. Wolfe is objecting to the entire record and pleadings.

"MR. WOLFE: When it is offered in evidence, then we will reserve the right to make our objections to the competency of such parts of it.

"MR. ARNOLD: You object, as I understand it, to the whole proceeding?

"MR. WOLFE: Yes.

"MR. ARNOLD: On the theory that it constitutes no defense in the case.

"MR. WOLFE: Yes.

"THE COURT: Let the record now show that they offer as a part of this record those files, and let Mr. Wolfe make his objections, and then I can tell the limit and scope of your offer and objections,

"MR. WOLFE: Yes, and it is further agreed that the evidence in this case will show that the defendant insurance company, after notice and demand on the part of the plaintiff that the defendant repair the damages to the said insured building, that the defendant has not made any repairs whatsoever to the said insured building to this date.

"MR. ARNOLD: It is further agreed that each of the parties to this suit paid his own appraiser and paid one-half of the expense of the umpire in making said appraisement, according to the stipulation, and that the amount paid was $31. It is agreed that the defendant through its local agent at Joplin, Missouri, upon December 2, 1931, mailed to Mr. A.J. Gordon, 2109 Connor Avenue, Joplin, Missouri, a letter, a carbon copy of which may be offered in evidence, and in which letter the defendant, through its agent at Joplin, Missouri, advised the plaintiff that it was prepared to pay to the plaintiff, O.H. Gentry and Louaddio Ping Feroglia, the amount of the award, to-wit, the sum of $1,106.05.

"MR. WOLFE: And that the testimony on the part of the plaintiff in this case will be that he did not receive such letter.

"MR. ARNOLD: Yes.

"MR. WOLFE: It is further agreed that the reasonable rental value of the insured property in question before...