Iowa State Ins. Co. v. Mo. So. R.R. Co.

• Decision Date: 17 September 1928
• Docket Number: No. 4377.,4377.
• Citation: 9 S.W.2d 255
• Court: Missouri Court of Appeals
• Parties: IOWA STATE INSURANCE COMPANY, RESPONDENT, v. MISSOURI SOUTHERN RAILROAD CO., APPELLANT.<SMALL><SUP>*</SUP></SMALL>

9 S.W.2d 255

IOWA STATE INSURANCE COMPANY, RESPONDENT, v. MISSOURI SOUTHERN RAILROAD CO., APPELLANT.^*

No. 4377.

Springfield Court of Appeals. Missouri.

September 17, 1928.

Appeal from the Circuit Court of Reynolds County. — Hon. E.M. Dearing, Judge.

AFFIRMED.

John H. Chitwood and Jules A. Fremon for appellant.

BAILEY, J.

This is a suit by plaintiff insurance company to recover of defendant the amount plaintiff paid the insured on one of its fire insurance policies. The action is for damages on account of the destruction by fire of a three-room dwelling house situated at Bunker, Missouri, near defendant's railroad track. Plaintiff alleged that the owner of this house had a policy of insurance issued on it by plaintiff, insuring the property against fire to the extent of $500; that on June 11, 1926, while said policy was in force, the house was destroyed by fire communicated to it by sparks from one of defendant's locomotives; that by reason of said fire plaintiff became liable to and paid the insured $500 under the terms of said policy; that upon the payment of said sum plaintiff became and was subrogated to all the rights of said insured against defendant. The answer was a general denial. The case was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $150, from which judgment defendant has appealed.

The facts necessary to an understanding of the issues raised may be briefly stated. There was evidence tending to prove the fire was caused by sparks emitted from defendant's locomotive and communicated to the dwelling house insured. Defendant does not seriously question the sufficiency of the evidence to sustain the verdict on that phase of the case. The policy of insurance contained a provision that in the event the building insured "be or become vacant or unoccupied, and so remain for ten days" the policy should be void. We may assume, for the sake of argument, that the evidence shows the building in question was unoccupied for a period of ten days before the fire so as to give plaintiff the right to avoid the policy. Nevertheless, plaintiff paid the claim in the sum of $500 and at that time took from the insured a written assignment. This assignment provided that in consideration of the sum so paid, and in full settlement of the insured's claim, he assigned to plaintiff all right, claims or choses in action he might have against defendant, granting plaintiff the right "to sue, compromise or settle in my name or otherwise, and it is hereby fully substituted in my place and subrogated to all my rights in the premises to the amount so paid."

It is urged by defendant that plaintiff was under no legal obligation to pay the loss occasioned by the fire because the policy had become void by reason of the dwelling house being unoccupied for a period of ten days; that in making such payment plaintiff was a mere volunteer and not entitled to recover from defendant; and that the payment of the loss did not entitle plaintiff to an assignment and subrogation to the rights of the insured against defendant. In support of these contentions defendant cites Cape Girardeau Bell Tel. Company v. Hamil's Estate, 153 Mo. App. 404, 134 S.W. 1103, and other similar cases. Those cases...