Hoffman v. Northwestern National Ins. Co.
| Citation | 38 S.W.2d 730 |
| Decision Date | 21 May 1928 |
| Docket Number | 16269 |
| Parties | HOFFMAN v. NORTHWESTERN NAT. INS. CO. |
| Court | Kansas Court of Appeals |
Rehearing Denied June 11, 1928.
Appeal from Circuit Court, Sullivan County; J. E. Montgomery, Judge.
Action by J. J. Hoffman against North-western National Insurance Company. Judgment for plaintiff, defendant’s motion for new trial was overruled, and defendant appeals.
Reversed and remanded in part and amended in part. Opinion quashed in part in 322 Mo. 1236, 18 S.W.2d 21.
Alpha L. Burns, of Milan, and C. C. Crow, of St. Joseph, for appellant.
L. E Atherton, of Milan, for respondent.
This is an action to recover on a policy of fire insurance.
Defendant is a corporation organized and existing under the laws of Wisconsin and duly authorized to transact business as such in the state of Missouri, insuring against loss by fire and lightning.
On December 29, 1924, for and in consideration of $7.50 premium, defendant issued its policy of insurance whereby it insured plaintiff against loss by fire in the sum of $500.00, upon his dwelling house, situated on an out lot adjoining Fifth and Pearl streets in Milan, Sullivan county, Mo., for a period of three years, beginning December 29, 1924. On February 8, 1926, the said house was totally destroyed by fire. Proofs of loss, notice, and demand for payment were timely made, and payment was refused. This suit followed. The petition filed was returnable at the May term, 1926, of the circuit court of Sullivan county, prayed judgment for $500, the amount of the policy, with interest at 6 per cent. from February 9, 1926, and 10 per-cent. for vexatious delay and a reasonable attorney fee. Facts are alleged as above indicated.
The amended answer is, first, a general denial; admits the issuance of the policy and the loss by fire, as alleged, and pleads provisions of the policy, as follows:
As affirmative defense the answer pleads that long prior to February 28, 1925, the house covered by the policy became vacant; that on said date plaintiff notified defendant that said building was vacant, and that defendant, at the request of plaintiff, issued and attached to the policy its written vacancy permit for sixty days, reducing the insurance one-third during the life of such permit; that thereafter defendant was not notified by plaintiff that said house was vacant after the expiration of said vacancy permit; that the said dwelling was continuously vacant from April 28, 1925, until February 8, 1926; that, under and by virtue of the terms of the vacancy permit attached to the policy, the amount of coverage was one-third less than the face of the policy; that by reason of the vacancy of the premises the hazard of defendant was thereby greatly increased, and that at no time did plaintiff pay, or offer to pay, any additional premium on the policy from April 28, 1925, to February 6, 1926, and that by reason of these facts the policy became void and defendant is not liable for any loss sustained by plaintiff.
The answer states that after the loss occurred defendant tendered plaintiff the sum of $6.67 unearned premium; that the said tender was refused by plaintiff; that defendant "tenders into court" the said sum, together with costs accruing to date.
The reply was a general denial. By agreement of parties the cause was submitted to the court sitting as a jury, upon the following agreed statement of facts:
"It is now hereby agreed by and between plaintiff and defendant that the policy of insurance, together with all riders thereon and attached thereto, shall be and constitute a part of this agreed statement of facts.
It is further agreed that more than 60 days prior to the 28th day of February, 1925, the house or dwelling described in the policy became and remained vacant, and that on the 28th day of February, 1925, at the request of plaintiff, the agent of defendant at Milan, Sullivan County, Missouri, issued and attached to the policy a permit for vacancy as shown by the permit attached to and made a part of the policy, and no other vacancy permit was issued by defendant. It is also agreed that the plaintiff would testify that at the time he made the request for vacancy permit, he stated to the agent that he wanted the agent to keep a permit on the policy for and during all time in the future during the life of the policy, unless instructed by him that the house or dwelling was no longer vacant. In other words, to keep a vacancy permit on the policy until otherwise notified. The agent states that he has no recollection of the conversation, but they both agree that there was but one conversation and at that time the permit attached to and made a part of the policy was executed by agent of defendant.
It is further agreed that under the rules, charges and credits, terms, privileges, riders, forms and conditions of fire, lightning and wind storm insurance in Missouri by Missouri Inspection Bureau of Missouri, there is in full force and effect the following rules:
‘Permission may be granted in the policy form, or by endorsement, for mercantile buildings to remain vacant for not exceeding sixty days at any one time, and for dwellings to remain vacant for not exceeding sixty days, or unoccupied for not exceeding six months at any one time, without extra charge.
When dwellings are vacant for a period exceeding sixty days at any one time, or are unoccupied for a period exceeding six months at any one time, the following vacancy or unoccupancy permit No. 1 must be attached to the policy, and for such excess period charge short rate of 25 cents.’
It is further agreed that plaintiff at no time paid or offered to pay the defendant any additional premium at or since the 28th day of February, 1925. It is further agreed by and between the parties hereto that on the 8th day of February, 1926, the dwelling house covered by the policy was totally destroyed. It is further agreed by the defendant that it received immediate notice of the fire, and that thereafter within the time provided by the policy proof of loss was duly made in accordance with the terms of the policy.
It is further agreed by and between the parties that on the 31st day of March, 1926, the defendant tendered to plaintiff the sum of $6.67, the full amount of return premium under short rate, the said premium not having been earned prior to the date of the fire. And it is further agreed that thereafter and on the 4th day of January, 1927, the defendant in its answer tendered the sum of $6.67 together with all costs that had accrued to that date, and that the amount thereof was deposited with the clerk of the court.
It is further agreed that the policy remained in possession of defendant’s agent from date of issue.
It is further agreed by and between plaintiff and defendant that if plaintiff is entitled to recover and the court finds from the agreed statement of facts that the refusal of defendant to pay was vexatious, then the court may assess a sum not exceeding ten per cent for vexatious delay, and in addition thereto the sum of $100 attorney’s fee in favor of plaintiff. It is further agreed, however, that the defendant objects to the assessment of penalty or attorney’s fees because there is no evidence of vexatious delay."
The policy is not set out, but it is agreed it contains the following provisions: "If the premises are vacant for a period exceeding sixty days or unoccupied for a period exceeding six months at any one time this policy is void; unless special form of permission therefor is attached thereto."
There was attached to the policy a vacancy permit as follows:
"Uniform Standard Missouri Form No. 201
Vacancy or Unoccupancy Permit No. 2 (Reducing insurance one-third)
Permission is hereby granted for the premises described in this policy to remain vacant from the 28th day of February, 1925, to the 28th day of April, 1925.
The term ‘vacant’ is construed to mean an empty building devoid of personal habitation, and the term ‘unoccupied’ is construed to mean a dwelling that is entirely furnished, but with personal habitants temporarily absent.
In consideration of the increased hazard by reason of such vacancy or unoccupancy, during such vacancy or unoccupancy, one-third (⅓ ) of the amount of insurance under each item of this policy shall be and remain suspended and of no effect. And in case of loss this company shall not be liable to pay or make good to the assured exceeding two-thirds (2/3) of the amount insured on each item hereunder, nor exceeding two-thirds (2/3) of the amount of loss or damage.
If this policy contains any clause requiring the assured to carry a specified percentage of insurance, one-third (⅓ ) shall be deducted from the proven cash value of the property insured on the application of such clause during such vacancy or unoccupancy.
It is made a condition of this insurance that the premises shall be kept properly closed and secured to prevent trespassing or the entrance of unauthorized persons during the term of this permit.
Attached to and forming part of Policy No. 10050, of the Northwestern National Insurance Company, of Milwaukee, Wisconsin. Issued at its Milan, Missouri Agency.
Dated Feb. 28th, 1925.
McCallister Loan Co. Agent."
Judgment was for plaintiff for $500, the amount of the policy, interest thereon at 6 per cent. from February 9,...
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