Lorenz v. Bull Dog Automobile Ins. Ass'n

• Decision Date: 29 September 1925
• Docket Number: No. 19072.,19072.
• Citation: Lorenz v. Bull Dog Automobile Ins. Ass'n, 277 S.W. 596 (Mo. App. 1925)
• Parties: LORENZ v. BULL DOG AUTOMOBILE INS. ASS'N OF CHICAGO.
• Court: Missouri Court of Appeals

277 S.W. 596

LORENZ v.BULL DOG AUTOMOBILE INS. ASS'N OF CHICAGO.

No. 19072.

St. Louis Court of Appeals. Missouri.

September 29, 1925.

Rehearing Denied October 29, 1925.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Suit by Jacob Lorenz against the Bull Dog Automobile Insurance Association of Chicago.From a judgment for plaintiff, defendant appeals.Affirmed.

Kane, Schrieber & Newman and F. H. Bacon, all of St. Louis, for appellant.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent.

BENNICK, C.

This is a suit upon an automobile insurance policy carried by plaintiff with defendant association.The verdict of the jury was for plaintiff in the sum of $1,-263.13.The trial court ordered a remittitur of $107.53, and judgment was entered for plaintiff for $1,155.60, from which judgment defendant has appealed.

The amended petition upon which the case was tried alleged that an agreement was entered into between plaintiff and defendant by the terms of which plaintiff was insured by defendant against the loss of his Willys-Knight automobile by fire or theft; that all premiums were fully paid; that on August 8, 1922, the car was stolen and subsequently found destroyed by fire; that plaintiff notified defendant of his loss; and that defendant disclaimed liability therefor.Judgment was prayed for in the sum of $1,375.The answer was a general denial.

The evidence showed that in 1919plaintiff applied for and received from defendant an insurance policy upon an Overland automobile owned by him, the risks covered being collision, personal injury, and property damage.In August, 1920, plaintiff exchanged the Overland for a Willys-Knight touring car of the value of $2,397, and on August 30, 1920, applied to defendant for a transfer of the policy so as to cover his new car, giving a description of the same as required by defendant, and inclosing with his application the transfer fee of $1 provided for in his policy.The motor number of the Willys-Knight car purchased by plaintiff was 8250 and the serial No. 8547.However, in the application for transfer of the insurance from the Overland to the Willys-Knight, the motor number was erroneously given as 4358.In all other respects the description was correct.Plaintiff testified that the "filled-in" part of the application was in the handwriting of Mr. Watson, an agent of defendant, and that his signature was all he himself "put on it."The information desired was furnished the agent by plaintiff at plaintiff's home, and the application filled out there.

In the application for transfer, the year of the model of plaintiff's car was originally written "1920," but subsequently some one wrote over the cipher a "1" in an attempt to make the year of the model read "1921."Plaintiff disclaimed all knowledge of this act, and made no contention that his car was of a later model than 1920.In fact, the application signed by him was dated August 30, 1920, which fact in itself indicated that the car was not a 1921 model.

After an indebtedness of $1,500 on the Willys-Knight was fully paid, plaintiff applied to defendant for insurance against loss by fire or theft on said car.Neither the precise manner in which nor the time when this insurance was obtained appear in the record, but, as the case was tried in the lower court upon the theory that plaintiff's original written policy was subsequently modified by a parol agreement providing for insurance against loss by fire or theft, the same view of the case will of necessity be taken here.The records of defendant introduced in evidence by plaintiff showed that on March 30, 1922. plaintiff paid and defendant received the sum of $58.63 as a total premium for all insurance carried by plaintiff, and that of this sum $5.13 was applied by defendant to fire protection and $10 to the theft assessment.On August 20, 1922, some little time after his loss occurred, plaintiff received a letter from defendant reminding him that his premium was overdue, and in compliance therewith he again sent defendant the sum of $53.63, which again was apportioned by defendant so as to apply to the fire and theft assessments.

Plaintiff's car was stolen on August 8, 1922, and on the following day found destroyed by fire.A claim for the loss was subsequently filed by plaintiff with defendant.On August 18, 1922, he was advised by defendant in a letter that the estimate of the cost of repairs to his car exceeded the amount due him under the terms of his "fire and theft coverage in the Bull Dog Auto Insurance Association," and that his claim was being referred to the claim department "for cash settlement as per the terms of your policy."

When the location of plaintiff's car was reported to him, he went to view it in company with one of defendant's adjusters.The motor number of the burned car was 8250, and the license plate found upon it was the one issued to plaintiff, indicating that the car destroyed was the one obtained by plaintiff in exchange for his Overland.Plaintiff testified that the one Willys-Knight was the only car of that make he ever owned, and in this statement was corroborated by the salesman for the Willys-Overland Company, who testified that only one Willys-Knight was ever sold by his company to plaintiff.

At the close of plaintiff's case, defendant offered a demurrer to the evidence, which was overruled.The defendant offered no testimony, and the case was submitted to the jury upon formal instructions given on the court's own motion upon burden of proof and preponderance of the evidence, after the one instruction asked by plaintiff submitting the issue of defendant's vexatious refusal to pay had been refused.

Defendant assigns as error the action of the court in overruling its objections to the introduction of evidence, for the reasons that the petition did not state a cause of action and was so vague and indefinite that it was impossible to determine from it the precise nature of plaintiff's claim.The ruling of the court, however, was entirely proper.As fair as the record discloses, no demurrer or timely motion was filed in this case before it was called for trial.Demurrer ore tenus is not favored by the courts, and only such objections as are necessarily and absolutely fatal to the pleadings will be allowed in this manner.In ruling upon such motion the petition will be construed most favorably to plaintiff, and every fair inference drawn in plaintiff's favor.State ex rel. v. Arkansas Lumber Co., 260 Mo. 212, 169 S. W. 145;East St. Louis Ice & Cold Storage Co. v. Kuhlmann, 238 Mo. 685, 142 S. W. 253;Kern v. United Rys. Co., 214 Mo. App. 232, 259 S. W. 821;Coliseum Athletic Ass'n v. Dillon, 204 Mo. App. 504, 223 S. W. 955;Hays v. Estate of Miller, 189 Mo. App. 72, 173 S. W. 1096.

In the same connection defendant makes the point that the court erred in overruling its objection to the effect that, under the opening statement made by counsel for plaintiff, his remedy, if any, was in equity for a reformation of the contract.Even if there were any merit in defendant's assignment, it would be impossible for us to pass upon it here, for the reason that the opening statement of plaintiff's counsel does not appear in the abstract of the record.

Defendant argues most earnestly that the court erred in overruling the instruction in the nature of a demurrer offered by defendant at the close of plaintiff's case.It bases its contention upon the fact that, under plaintiff's application for transfer of insurance from the Overland to the Willys-Knight, he expressly omitted fire and theft from the list of risks against which he desired to be insured; that the evidence does not disclose that plaintiff was ever notified of the acceptance of his application by defendant; that no new certificate was issued; and that, granting that defendant had insured plaintiff against loss by fire or theft on a...