Keeley v. Indemnity Co. of America

• Decision Date: 19 June 1928
• Docket Number: No. 20137.,20137.
• Citation: 7 S.W.2d 434
• Court: Missouri Court of Appeals
• Parties: JOHN L. KEELEY, RESPONDENT, v. THE INDEMNITY COMPANY OF AMERICA, A CORPORATION, APPELLANT.<SMALL><SUP>*</SUP></SMALL>

7 S.W.2d 434

JOHN L. KEELEY, RESPONDENT, v. THE INDEMNITY COMPANY OF AMERICA, A CORPORATION, APPELLANT.^*

No. 20137.

St. Louis Court of Appeals. Missouri.

Opinion filed June 19, 1928.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Franklin Miller, Judge.

REVERSED AND REMANDED (conditionally).

Leahy, Saunders & Walther and Lyon Anderson for appellant.

(1) The court should have given the instruction in the nature of a demurrer to the evidence for the reason that the evidence clearly shows that plaintiff was not the real party in interest. R.S. 1919, sec. 1155; Van Doren v. Relfe, 20 Mo. 455; Jeffers v. Oliver, 5 Mo. 433; Crescent Furniture Co. v. Raddatz, 28 Mo. App. 210; American Forest Co. v. Hall, 279 Mo. 643; Brady v. Chandler, 31 Mo. 28. (2) Plaintiff's instruction No. 2 is erroneous because it is confusing, misleading and submits a question of law to the jury. (3) Plaintiff's instruction No. 3 is erroneous because it assumes knowledge on the part of defendant of the existence of the chattel mortgage on the October trucks. Oehler v. Phoenix Ins. Co., 139 S.W. 1173, 1176. (4) The court erred in submitting the issue of vexatious refusal to pay to the jury. (a) Defendant's refusal to pay was not vexatious. Non-Royalty Shoe Co. v. Fidelity Phoenix Assurance Co., 277 Mo. 399; State ex rel. Mo. State Life Ins. Co. v. Allen et al., 143 S.W. 839; Patterson v. American Ins. Co., 174 Mo. App. 44; Berryman v. Maryland Motor Car Co., 204 S.W. 739; Rollins v. Business Men's Acc. Assn., 204 Mo. 679. (b) The Illinois law covers the question of the right to recover penalties and attorney's fees since the question of penalties and attorney's fees for vexatious refusal to pay goes to the performance of the contract and the law of the place of performance governs the questions involving performance. Thompson v. Traders Ins. Co., 169 Mo. 29; Martin v. Mut. Life Ins. Co., 190 Mo. App. 714-15.

Holland, Lashly & Donnell for respondent.

(1) Plaintiff was clearly the real party in interest and consequently the court was correct in overruling the defendant's instruction in the nature of a demurrer to the evidence. 30 Cyc 78; Swift & Co. v. Railroad, 149 Mo. App. 526; Guerney v. Moore, 131 Mo. 650; Hartmann v. Owens, 293 Mo. 508; Young v. Hudson, 99 Mo. 102; 13 C.J. 528; MacDonald v. Wolff, 40 Mo. App. 302; Parlin and Orendorf Co. v. Boatmen, 84 Mo. App. 72; Houck v. Frisbee, 66 Mo. App. 16; Western Advertising Co. v. Star Publishing Co., 146 Mo. App. 90; Waples v. Jones, 62 Mo. 440; 5 C.J. 852, 854; Cornell v. Insurance Co., 179 Mo. App. 420; Key v. Continental Insurance Co., 101 Mo. App. 344; 30 Cyc 83; Lentz v. Oregon Growers Co-op. Assn., 242 Pac. 826, 116 Ore. 683; Black v. Donnelson, 193 Pac. 424, 79 Okla. 299. (2) Plaintiff's instruction No. 2 is not confusing, misleading, nor does it submit a question of law to the jury. 38 Cyc. 1604. (3) Plaintiff's instruction No. 3 does not assume knowledge, at the time of the payment of the loss on the September truck, by the defendant of the existence of the chattel mortgages on the October trucks, and even if the instruction did so assume it would not be erroneous, because it is not error to assume in an instruction the existence of an uncontroverted fact. It is proved by documentary proof (viz., letter of January 23, 1923 — Plaintiff's Ex. G), with no contradiction attempted, that at the time defendant paid the September truck loss it knew of the existence of the chattel mortgages on the October trucks. Appellant's Abstract of the Record, pp. 108, 115; Warren v. Curtis & Co. Mfg. Co., 234 S.W. 1029; Dicksheets v. Patrick, 274 S.W. 891; Davidson v. Transit Co., 211 Mo. 320; Ward v. American Railway Express Co., 259 S.W. 515; Asarodian v. Sayman, 282 S.W. 507; Rey v. Fayette R. Plumb, Inc., 287 S.W. 783; Wood v. Great American Ins. Co. et al., 279 S.W. 205; Koenig v. Kansas City Railways Co., 243 S.W. 118; Patton v. Eveker, 232 S.W. 762. (4) The court committed no error in submitting to the jury the issue of vexatious refusal to pay. Brown v. Railway Passenger Assurance Co., 45 Mo. 221; Hicks v. Metropolitan Life Insurance Co., 196 Mo. App. 162, 190 S.W. 661; Coscarella v. Insurance Co., 175 Mo. App. 130; Stix v. Indemnity Co., 175 Mo. App. 171; Rabok Mfg. Co. v. Scottish Union and National Ins. Co., 236 S.W. 918; Liebel v. Metropolitan Life Ins. Co., 241 S.W. 647; Grove v. Great Eastern Cas. Co., 212 Mo. App. 316, 246 S.W. 1002; Ramsey v. Underwriters Assn., 71 Mo. App. 380; Lieberman v. American Bonding & Casualty Co., 244 S.W. 102; Ricks v. National Fire Ins. Co., 254 S.W. 414; Waddle v. Insurance Co., 184 Mo. App. 571; Keller v. Home Life Ins. Co., 198 Mo. 440; Ayers v. Continental Ins. Co., 217 S.W. 555; Ruse v. Mutual Benefit Life Ins. Co., 23 N.Y. 516; Bottomley v. Metropolitan Life Ins. Co., 170 Mass. 274, 49 N.E. 438; Galloway v. Standard Fire Ins. Co., 45 W. Va. 237, 31 S.E. 969; Minor on Conflict of Laws, p. 328; Pritchard v. Norton, 106 U.S. 124; Banco de Sonora v. Bankers Mutual Casualty Co., 124 Iowa, 576, 100 N.W. 532, 12 C.J. 450; Davis v. Insurance Co., 67 N.H. 218.

DAUES, P.J.

This is a suit on a fire insurance policy issued by defendant company to plaintiff, covering three automobile trucks. There was a verdict and judgment for plaintiff in the sum of $5600 with interest, making $6716. The verdict also allowed the sum of $560 for vexatious delay in refusing to pay the policy, and $800 attorney's fee, totaling in all the sum of $8076. Plaintiff voluntarily remitted $671.40, which is the amount plaintiff tendered at the trial as credit on any judgment to be rendered for plaintiff, so that we have before us a verdict and judgment for $7404.60. Defendant appeals.

No question arises about the pleadings. The proof most favorable to plaintiff appears to be that two trucks were purchased by plaintiff in October, 1922, from the International Harvester Company. He paid $7023 for them and the insurance on these trucks was for $5600. To distinguish the trucks involved, they are referred to in the evidence as the October trucks. A third truck was bought by plaintiff from the same company in September, 1922, and this truck will be called the September truck.

When purchasing the October trucks, plaintiff exchanged two old trucks which he had bought in August of that year, and these trucks will be called the August trucks. On the October trucks plaintiff gave the Harvester company notes as part payment, and the notes were secured by a chattel mortgage on the trucks. The same mortgage transaction was had with reference to the September trucks, and all mortgages were duly recorded in St. Clair county, Illinois, October 26, 1922. On January 23, 1923, there was still unpaid on the three trucks the sum of $7013.72. A fire occurred on January 20, 1923, in which the trucks were totally destroyed in East St. Louis, Illinois.

The insurance was solicited and obtained through Arthur Bauer, an insurance broker. That is to say, Bauer testified that he secured the insurance and that his office was in the defendant company and that he did not pay any rent, and that he used the office equipment and stenographic service without cost to him; that it was his agreement with defendant company to place all of his business with them. He, however, testified that in fact he placed only about one-fourth of his business with defendant. At any rate, Bauer secured the policy from defendant in the city of St. Louis and delivered it to plaintiff in East St. Louis. The premium was paid by notes, one being for $450, due January 30, 1923, and the other for $441.84, became due March 1, 1923. It seems that the notes included an amount other than this transaction, but this matter is taken care of and is not involved.

On February 3, 1923, defendant by a draft for $700 made payable to plaintiff and the Harvester company paid the loss in full on the September truck only. The record shows that prior to this payment, the Harvester company notified the defendant, in writing, that it held a mortgage on the September truck and the mortgages on the October trucks. This letter is dated January 23, 1923. On January 18, 1924, plaintiff made an assignment, which is really the crux of this whole controversy. This assignment is as follows, italics ours:

"For value received I hereby assign, set over and transfer unto International Harvester Company of America all my right, title and interest in and to such proceeds as may ultimately be derived from any and all insurance policies, upon which collection has not yet been made, which policies may be applicable to certain trucks destroyed by fire in East St. Louis, Illinois, on or about January 20, 1923, which said trucks were previously sold to me and upon which the said International Harvester Company of America holds a mortgage.

                  "Dated January 18, 1924
                                "[Signed]  JOHN L. KEELEY."
                

Plaintiff insists that this is an assignment of the proceeds and not of the claim itself. The defendant maintains that it is a straight out and out assignment of the claim. We will later consider this question.

Controversy arises as to whether there was insurance on the October trucks in another company, to-wit the Fort Dearborn Casualty Underwriters. The evidence in this respect is very conflicting. There was evidence that plaintiff and Bauer came to the office of defendant the day after the fire and that plaintiff produced three policies, the one in suit and two others issued by the Fort Dearborn Casualty Company.

Witness S.G. Parks testified that he was connected with the defendant company. He stated that the Fort Dearborn policies covered the same trucks that are here in suit; that he had the policies in his possession for a few moments but did not know the numbers on them, and that he then took the policies in to Mr. Thompson of defendant company. The court at this point interrupted the witness and asked him whether he took the policies from the...