Hayward v. Globe & Rutgers Fire Ins. Co.

• Decision Date: 21 April 1928
• Docket Number: No. 16326.,16326.
• Court: Missouri Court of Appeals
• Parties: HAYWARD v. GLOBE & RUTGERS FIRE INS. CO.

6 S.W.2d 648

HAYWARD v. GLOBE & RUTGERS FIRE INS. CO.

No. 16326.

Kansas City Court of Appeals. Missouri.

April 21, 1928.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Harry C. Hayward against the Globe & Rutgers Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Crow & Newman, of Kansas City, for appellant.

Strother, Campbell & Strother, of Kansas City, and L. T. Dryden, of Independence, for respondent.

WILLIAMS, C.

This case comes to us from the circuit court of Jackson county, and is an action on a policy of fire insurance on a grain elevator. The petition is in conventional form. The answer, after a general denial and specifically denying the ownership of the real estate by plaintiff, alleges that Frank Hayward intentionally burned or caused the property to be burned. The evidence shows that the plaintiff received a warranty deed to the property in question, which was duly recorded on August 30, 1923, and at that time took possession.

The father of the plaintiff operated the elevator in 1924 by reason of other employment of the plaintiff. The insurance policy sued on was issued April 15, 1924, and was taken in the name of plaintiff. The proof of loss was made in plaintiff's name. The evidence shows that a check of Frank Hayward paid for two elevators which were bought about the same time. It is in evidence that the plaintiff herein paid $750 on the purchase price, and that Frank Hayward loaned the son the rest of the money necessary to buy the elevator. There was no tender made by defendant of the premium collected.

The verdict was for $6,736, the value of the property destroyed, $50 for vexatious delay, and $700 attorneys' fees.

After an unsuccessful motion for a new trial, defendant brings the case here on appeal.

It is first contended that instruction No. 1 is erroneous in that it did not require the jury to find that plaintiff was the owner of the property at the time of the fire. That this is error there can be no doubt. The only question is whether or not it is reversible error. Under the authority of Avery v. Mechanics' Ins. Co. of Philadelphia (Mo. App.) 295 S. W. 509, loc. cit. 514, following Davidson v. Transit Co., 211 Mo. 320, 109 S. W. 583, it is not reversible error to assume the existence of an undisputed fact. We think this case falls within that rule. There is no conflict between these cases and Gannon v. Gas Co., 145 Mo. 502, 46 S. W. 968, 47 S. W. 907, 43 L. R. A. 505; Lafferty v. Casualty Co., 287 Mo. 555, 229 S. W. 750; State ex rel. Hartford Life Ins. Co. v. Trimble, 298 Mo. 418, 250 S. W. 393.

In the case at bar the answer specifically denied ownership. After carefully examining this record we have come to the conclusion that, ownership having been proven by a general warranty deed, and no evidence introduced which could tend to impeach the deed and, further, the payment by plaintiff of a part of the purchase price and that his owing the balance, that this cause follows within the rule of Avery v. Mechanics' Ins. Co. of Philadelphia, supra, and that the failure to submit, in the instruction, ownership of the property, is not reversible error. The next point made by...