Hiller v. Connecticut Fire Ins. Co.

• Decision Date: 19 August 1933
• Docket Number: No. 5295.,5295.
• Citation: 63 S.W.2d 461
• Parties: HILLER v. CONNECTICUT FIRE INS. CO.
• Court: Missouri Court of Appeals

63 S.W.2d 461

HILLER v. CONNECTICUT FIRE INS. CO.

No. 5295.

Springfield Court of Appeals. Missouri.

August 19, 1933.

Rehearing Denied October 7, 1933.

Appeal from Circuit Court, Pemiscot County; John E. Duncan, Judge.

"Not to be published in State Reports."

Suit by Louis Hiller against the Connecticut Fire Insurance Company. From a judgment for plaintiff, the defendant appeals.

Affirmed upon condition.

Ward & Reeves, of Caruthersville, for appellant.

Sharon J. Pate and Sam J. Corbett, both of Caruthersville, for respondent.

SMITH, Judge.

This suit was instituted in the circuit court of Pemiscot county, Mo., on January 15, 1932, returnable to the March term, 1932, of said court, where it was first tried before a jury on April 6, 1932, resulting in a hung jury. It was tried the second time on November 22, 1932, resulting in a verdict and judgment in favor of the plaintiff for the sum of $700 on the policy of insurance, interest amounting to $42, and an attorney's fee of $150, making a total judgment of $892, from which latter judgment this appeal was duly taken by the defendant.

This suit is based upon a policy of fire insurance for $1,000 issued by the defendant on a 1929 Hudson landau sedan automobile. The petition describes the policy, which was dated September 16, 1931, and delivered to the plaintiff on September 18, 1931, the term of the policy being one year. The petition charges that on December 6, 1931, the automobile described in the insurance policy was totally destroyed by fire, and that the value of said automobile at said time was $1,000. It further charges that due notice of the loss was given to the defendant, but that the defendant denied liability, and vexatiously refused to pay the loss. Judgment was prayed for the sum of $1,000, with interest, penalty, and attorney's fees.

The answer of the defendant admitted the insurance and delivery of the policy of insurance, and admitted the payment of the premium thereon, and was also a general denial. The answer further denied that the automobile in question had a value of $1,000, and denied that the plaintiff had performed all the precedent and subsequent terms and conditions of the policy, and denied that any of the terms of said policy had been waived by the defendant. The answer as a further defense pleaded certain terms and conditions of the policy with reference to the terms of contract being embodied in writing and that no agent of the defendant had any power or authority to waive or modify any of the written conditions, and providing further that the policy was to be void in the event the assured violated any of the agreements, conditions, or warranties contained in said policy of insurance or any rider which might be attached thereto. The answer also pleaded the various conditions of the policy of insurance with reference to the subject of the insurance being covered by a lien, mortgage, or other incumbrance, and pleaded further that the defendant had breached the terms of said policy by placing a chattel mortgage upon the automobile without such chattel mortgage being noted on the policy. The answer further stated that the defendant had tendered to the plaintiff prior to the institution of the suit all the premiums paid on said policy, together with accrued interest thereon, and which tender and offer had been refused by the plaintiff, and that, when the suit was instituted, the amount of said premium and interest was paid in to the clerk of the court for the use and benefit of the plaintiff, but that the plaintiff had at all times refused to accept the same.

The plaintiff filed a reply to this answer, denying generally all the new matter set up in said answer, and further admitting that the plaintiff had placed a mortgage upon the automobile in question prior to the time of the issuance of the policy to the National Investment Company of St. Louis, substantially as alleged in the defendant's answer, but that the agent of the defendant who wrote the policy had full knowledge and notice of the existence of said mortgage, and that plaintiff had given the same, and by reason thereof the defendant was estopped to defend on the ground that there was a mortgage on said automobile, even though it was not indorsed upon the policy sued upon.

The case is before us on five assignments of error, which we shall consider in the order presented.

The first assignment is a complaint because of the court's refusal of instructions in the nature of demurrers, one requested at the close of plaintiff's evidence, and one at the close of the whole case.

It was admitted that the policy was issued for the sum of $1,000 upon the car, and that the premium was paid and that the car was destroyed by fire while the policy was in force. The controversy was over the placing of a mortgage upon the car two days before the policy was issued, without notice thereof having been given to the insurance company, and also there was a controversy as to the value of the car, and as to whether there was such delay in settlement to entitle the plaintiff to damages therefor, and to attorney fees.

The plaintiff introduced in evidence the policy of insurance sued upon, which recited that the automobile was insured against fire and other hazards from September 4, 1931, to September 4, 1932, for the principal sum of $1,000, which was in consideration of a premium of $23.50 which was paid by plaintiff. No mortgage clause on other rider was attached to the policy. Paragraph D, clause 6, on the front page of the policy, contained the following: "The automobile described is fully paid for by the assured and there is no lien, mortgage or other encumbrance thereon except as follows: No exceptions."

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