Hunt v. U.S. Fire Ins. Co. of N. Y.

• Decision Date: 11 February 1946
• Citation: 193 S.W.2d 778,239 Mo.App. 625
• Parties: Eva F. Hunt v. United States Fire Insurance Company of New york, a corporation
• Court: Kansas Court of Appeals

193 S.W.2d 778

239 Mo.App. 625

Eva F. Hunt v. United States Fire Insurance Company of New york, a corporation

Court of Appeals of Missouri, Kansas City

February 11, 1946

Appeal from Caldwell County Circuit Court; Hon. James W. Davis Judge.

Reversed and remanded with directions.

Al Lebrecht, John W. Hudson, Alvin C. Trippe, and Hogsett, Trippe Depping & Houts, for appellant (respondent), United States Fire Insurance Company.

(1) The court erred in entering up a new judgment upon sustaining defendant's motion for new trial as to the grounds mentioned by the court without any new trial being had. Hurley v. Kennally, 186 Mo. 225, 228-9, 85 S.W. 357; Cazzell v. Schofield, 319 Mo. 1169, 8 S.W.2d 580 591-2. (2) The court erred in refusing defendant's instructions D-1 and D-2. National Fire Insurance Co. v Munger, (Mo. App.) 106 S.W.2d 10; Manning v. North British & Mercantile Ins. Co., 123 Mo.App. 456, 99 S.W. 1095; Hubbard v. Home Insurance Co., (Mo. App.) 222 S.W. 886; Miller v. Great American Insurance Co., (Mo. App.) 61 S.W.2d 205; Robertson v. Clark, 173 Mo.App. 301, 158 S.W. 854; Long v. Martin, 152 Mo. 668, 54 S.W. 473. (3) The court erred in giving plaintiff's instruction P-1. Sec. 5930, R. S. Mo., 1939; LaFont v. Home Insurance Co., 193 Mo.App. 543, 182 S.W. 1029. (4) The court erred in giving plaintiff's instruction P-2. Butler v. Equitable Life Assurance Society, 223 Mo.App. 94, 93 S.W.2d 1019, 1026; Evans v. Great Northern Life Assurance Co., (Mo. App.) 167 S.W.2d 118, 124 125; Zurkiewitz v. Millers National Insurance Co. of Chicago, Illinois, 229 Mo.App. 262, 76 S.W.2d 721; Non-Royalty Shoe Co. v. Phoenix Assurance Co., 277 Mo. 399, 210 S.W. 42; Aufrichtig v. Columbia National Life Ins. Co., 298 Mo. 1, 249 S.W. 917; Gott v. Fidelity & Deposit Co., 317 Mo. 1078, 298 S.W. 91; State ex rel v. Allen, 303 Mo. 608, 262 S.W. 43. (5) Instructions should not usurp the province of the jury with reference to the determination of the facts. Liable v. Wells, 296 S.W. 428, 317 Mo. 141; Ducoulombier v. Baldwin, (Mo. App.) 101 S.W.2d 96. (6) The court erred in admitting evidence of the work done by plaintiff's counsel in the declaratory judgment suit. Waddle v. Commonwealth Insurance Co., 170 S.W. 682, 184 Mo.App. 571.

J. M. Loomis, and Orin J. Adams, for respondent (appellant).

(1) The court did not err in entering a new judgment without a new trial being had. Under our new Code of laws of 1943, under the Civil Procedure, Sections 113-115-140, we find specific authority for the trial court to make just such an entry as was made in the case at bar. Hoelzel v. C., R. I. &. P. Ry. Co., 85 S.W.2d 126; Borgstede v. C. H. Wettereu, 116 S.W.2d 179. (2) The Court did not err in refusing defendant's Instruction D-1 and D-2. Walton v. Phoenix Assurance Co., 162 Mo.App. 316, 141 S.W. 1138; Florea v. Iowa State Ins. Co., 225 Mo.App. 49. (a) No waiver of ratification was pleaded by the defendant and that question is not in the case. R. S. Mo. 1939, Sec. 3354; Fulbright v. Phoenix Insurance Company, 44 S.W.2d 115; Moseley v. Northwestern National Insurance Company, 84 S.W. 1000; Johnson et al. v. Williamsburg City Fire Insurance Company, 205 S.W. 226. (3) The Court did not err in giving plaintiff's Instruction No. 1. Sec. 5930, R. S. Mo. 1939; Meyer Bros. v. Insurance Company, 73 Mo.App. 166. (4) The court did not err in giving plaintiff's Instruction No. 2. There was sufficient evidence to sustain the instruction. Avery v. Mechanics Insurance Company of Philadelphia, 295 S. W., l. c. 514; Coscarella v. Metropolitan Insurance Company, 157 S.W. 873; Otto v. Metropolitan Life Ins. Co., 127 S.W.2d 764; Non-Royalty Shoe Company v. Phoenix Assurance Co., 277 Mo. 423.

Boyer, C. Sperry, C., concurs.

OPINION

BOYER

The above caption of this case results from the fact that both parties have appealed to this court from a certain judgment rendered in the case, and an agreement of the parties has been filed herein to consolidate the cases numbered as above and present them in one brief covering all points in both cases. Accordingly, both appeals will be disposed of in this opinion. For convenience, the parties will be referred to as plaintiff and defendant.

Plaintiff instituted this action in the circuit court of Caldwell County by filing her petition April 25, 1941. Due to other litigation hereafter mentioned the case was not reached for trial until March 29 1944, at which time it was tried upon amended pleadings by both parties. By plaintiff's amended petition, the sufficiency of which is unquestioned, recovery was sought upon a fire insurance policy issued by the defendant on the 14th day of January, 1940, by which plaintiff was insured against loss by fire in the amount of $ 1000 upon her dwelling situated in the town of Breckenridge. It was alleged that the house was totally destroyed by fire on the 18th day of September, 1940, while the policy was in force; that plaintiff had complied with the conditions of the policy; that plaintiff demanded payment for said loss under said policy; that defendant refused to pay, which said refusal was asserted to be vexatious under the facts stated. Plaintiff demanded judgment for the amount of the policy, together with damages and attorneys' fees.

The amended answer of defendant admits the issuance of the policy in question whereby it insured plaintiff's house against loss by fire in the amount of $ 1000, and admits that the house was destroyed by fire, but denies each and every other allegation in the petition. Further answering, the defendant sets forth various provisions of the policy; the particular ones upon which reliance is placed in this appeal read as follows:

"This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein.

". . . This entire policy, unless otherwise provided by agreement indorsed or added hereto, shall be void . . . if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple . . . or if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance whether by legal process or judgment or by voluntary act of the insured, or otherwise. . . ."

The answer further alleges that prior to the fire and on August 19, 1940, "plaintiff entered into a certain contract for the sale of the property to one Jesse L. Walker for a consideration of $ 500.00 and received as a deposit on said sale the sum of $ 50.00. . . . That said contract for sale was in full force and effect at the time of said fire and the purchaser had taken possession of said property . . . ; that by reason of the foregoing contract and facts, and of such expressed and specific terms and provisions of said policy, there was no insurable interest in the plaintiff, Eva F. Hunt, at the time of said fire, and that by reason thereof the policy was wholly void at the time of the fire, and that plaintiff is not entitled to maintain any claim under said policy. . . ." The answer further states that defendant did not learn of the sale of the property until after the fire, and on the 27th day of March, 1941, denied liability under the policy on account of the fire, and at said time duly tendered return of the full premium paid by plaintiff for said policy, together with interest thereon; that the tender was refused and that defendant again makes such tender.

For reply, plaintiff admits that the policy contained the clauses set out in defendant's amended answer; but denies that she entered into any contract of sale or that she received any deposit on said sale and denies that said alleged contract of sale was in force and effect at any time; and denies that the alleged purchaser was in possesion of the property; and further reaffirms her sole ownership of the property and that no change of any kind had taken place in her ownership or insurable interest; that she at no time made any fraudulent representations to the defendant or breached or violated any conditions of the policy; that the policy was in full force and effect at the time of the fire, and prayed judgment according to her petition.

A summary of the evidence particularly relevant to points raised on appeal is the following: Plaintiff testified that the name of her husband was L. W. Hunt; that she and her husband had lived in Kansas City for approximately six years and prior thereto lived in the house in question in Breckenridge; that she owned the property and the title thereto was in her name. The policy of insurance on the house was identified and offered in evidence, a photostatic copy of which appears in the transcript. By its terms, defendant insured Eva F. Hunt for a term of one year from the 14th day of January, 1940, for all loss or damage by fire in an amount not exceeding $ 1000 on the property described therein as a one and one-half story shingle roof frame building located on ground described as a portion of Block 6 in the Third Wisconsin Addition to the town of Breckenridge. It was required to be countersigned by an authoried agent of the Company, and appears to have been so countersigned and issued by the local agent of the Company. After the issuance of the policy there was a small fire which caused some loss about September 4, 1940, and thereafter on September 18, occurred the fire which occasioned a total destruction of the house. Plaintiff testified that the Company, or the agent, was notified that there had been a fire which destroyed the house, and that some one came to...