Hayward v. Insurance Co. of North America

• Decision Date: 06 July 1926
• Docket Number: No. 15701.,15701.
• Citation: 287 S.W. 1084
• Parties: HAYWARD v. INSURANCE CO. OF NORTH AMERICA.
• Court: Missouri Court of Appeals

287 S.W. 1084

HAYWARD v. INSURANCE CO. OF NORTH AMERICA.

No. 15701.

Kansas City Court of Appeals. Missouri.

July 6, 1926.

Rehearing Denied July 22, 1926.

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

"Not to be officially published."

Action by Frank Hayward against the Insurance Company of North America. Judgment for plaintiff, and defendant appeals. Affirmed.

Crow & Newman, of Kansas City, Fred Lamb, of Salisbury, and Fyke, Hume & Hall, of Kansas City, for appellant.

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

ARNOLD, J.

This is an action upon a fire insurance policy, issued by defendant upon a grain elevator owned by plaintiff and located at Whitham, Chariton county, Mo.

The amended petition alleges that defendant is a corporation doing business in the state of Missouri, and that on September 1, 1923, defendant made, executed, and delivered its policy of insurance No. 4313, to plaintiff, whereby, in consideration of the payment of a premium of $28.05, defendant insured plaintiff against loss or damage by fire in the sum of $2,000, upon his elevator known as the Wabash elevator, situated in the town of Whitham, Chariton county, Mo., from noon of September 7, 1923, to noon of

September 7, 1924. The said policy was filed in this proceeding as Exhibit A.

The petition alleges that at the time of issuing said policy, and until the occurrence of the fire which destroyed said elevator, plaintiff was the owner in fee simple of all the property insured; that on November 2, 1923, and while said policy was in force, the said elevator was totally destroyed by fire, resulting in a loss to plaintiff exceeding the sum of $2,000, and in excess of the total amount of fire insurance thereon, to wit, $9,000, and in a total loss to plaintiff in the sum of $12,000; that immediate notice of said fire and loss was given defendant, and all the conditions and requirements of the policy to be performed by plaintiff were performed, and proof of loss furnished defendant; that, by reason of said fire and resulting loss, defendant became indebted to plaintiff in the sum of $2,000; that due demand for payment was made, but that on January 8, 1924, defendant refused and still refuses to pay said insurance, and denied and still denies any liability under said policy, and that said sum of $2,000 still remains unpaid. The prayer is for the principal sum of $2,000 with 6 per cent. interest thereon from January 8, 1924, for the statutory penalty for vexatious refusal to pay, and for $200 attorney's fee.

The answer admits the corporate status of defendant as alleged in the petition, and states that prior to August 16, 1923, H. C. Atterbury was the owner of the real estate and property described therein and in the policy attached thereto, and was also the owner of a tract of land located in the town of Whitham, Mo., upon which was located an elevator similar to the one described in the petition, and that, on August 16, 1923, said Atterbury sold to plaintiff the real estate upon which both elevators were located, and that he executed and delivered to plaintiff deeds thereto, that plaintiff paid for both said elevators and the land upon which same were located the sum of $3,500, and that the deeds so delivered to plaintiff recited a consideration of more than three times the amount actually paid therefor.

The answer alleges that both elevators and the land upon which they were located did not exceed in value the sum of $3,500, and alleges:

That for many years prior to the issuance of the policy in question, the Fidelity-Phœnix Fire Insurance Company carried policies of insurance on the elevators, renewing them from time to time, and that, from the time the original policy herein was issued to the time of the loss, said property had greatly depreciated in value. That after he purchased said property plaintiff applied to the Fidelity-Phœnix Fire Insurance Company for additional insurance on both elevators, but was refused. That "thereafter, and as a part of the fraudulent intent and purpose of the plaintiff hereinafter set forth, the plaintiff applied to agents of this defendant for additional insurance on said elevator and represented to said agent said elevator was of far greater value than in fact was the case. That, upon said representations, together with representations made by the plaintiff that said elevator handled a large amount of grain each year, and the misstatement in the deed as to the amount of the consideration, issued to the plaintiff its policy of insurance in the sum of $2,000, when in truth and in fact said property did not exceed in value the sum of $1,750, which the plaintiff well knew. That upon like misrepresentation said plaintiff procured $2,000 insurance in the Ætna Insurance Company, that said misrepresentations made by the plaintiff, together with the procuring of insurance largely in excess of the actual value of the property constituted a fraud upon this defendant, and rendered the policy sued on void.

"Defendant further states that, at the time of the purchase of the real estate mentioned in the petition and described in the policy sued on, defendant purchased said real estate for the purpose and with the intention of burning said property and collecting from this defendant and other insurance companies a very large amount of money in excess of the actual value of the property, and that this intention and purpose of plaintiff was to burn both elevators, and compel the insurance companies to pay therefor a sum of money very largely in excess of the value of said property, and defendant states that the plaintiff did procure policies amounting to $4,000 on the property described in this petition and in the policy sued on, making the total sum of $9,000 insurance upon buildings located upon real estate costing $1,750; and that on the other elevator located in the immediate vicinity plaintiff procured a policy of insurance amounting to $6,000, and that defendant states that, shortly after the fire which destroyed elevator described in plaintiff's petition, the other elevator was burned by plaintiff, but that prior to the burning of said elevator plaintiff pretended to convey the real estate upon which it was located to a son or nephew, but that said conveyance was without...