Manning v. Connecticut Fire Ins. Co.

• Decision Date: 16 July 1913
• Citation: 159 S.W. 750,176 Mo. App. 678
• Parties: MANNING v. CONNECTICUT FIRE INS. CO.
• Court: Missouri Court of Appeals

159 S.W. 750

176 Mo. App. 678

MANNING v. CONNECTICUT FIRE INS. CO.

St. Louis Court of Appeals. Missouri.

July 16, 1913.

Rehearing Denied October 6, 1913.

1. JUDGMENT (§ 570) — RES JUDICATA — NONSUIT.

Where a judgment recited that plaintiffs by attorney say they will no further prosecute the suit but voluntarily take a nonsuit, a recital that plaintiffs shall take nothing by their suit and that defendants shall go hence without day and recover its costs, though a final disposition of the particular suit, was not a final determination of the rights of the parties.

2. INSURANCE (§ 375) — FIRE INSURANCE — WAIVER OF CONDITIONS.

Where the agent of a fire insurance company, who possessed full authority to issue and countersign policies and collect the premiums, accepted the premium on plaintiff's policy after a loss, with knowledge that plaintiff's property was incumbered by a deed of trust, the act of the agent, especially as the company retained the premium, was a waiver of the condition in the policy that it should be void in case insured's interest was incumbered or conditional.

3. INSURANCE (§ 378) — FIRE INSURANCE — NOTICE TO INSURED.

Notice to an agent of a fire insurance company, who was authorized to issue and countersign policies and accept premiums, of a breach in the condition of a policy is notice to the company.

4. INSURANCE (§ 392) — FIRE INSURANCE — ESTOPPEL TO RELY ON CONDITIONS.

Where a fire insurance company who had notice, by its agent, of the breach of a condition against incumbrances retained the premium paid after a loss, it is estopped to rely upon a breach of such condition.

5. JUDGMENT (§ 590) — CONCLUSIVENESS — MATTERS CONCLUDED.

In a prior action in the federal court upon the same fire policy and for the same loss, a judgment for plaintiff, based upon the theory that the condition in the policy against incumbrances was not material to the risk, was reversed by the Circuit Court of Appeals, and on retrial plaintiff took a nonsuit, and, although waiver was pleaded, no question of waiver or estoppel to rely on the policy was determined. Held, that the judgment of the Circuit Court of Appeals was conclusive only as to the materiality of the condition, so that in a subsequent action on the policy, where the only question was one of waiver or estoppel of the company to rely upon the condition, the judgment was not admissible in evidence.

6. EVIDENCE (§ 334) — DOCUMENTARY EVIDENCE — ADMISSIBILITY.

In an action on a fire policy, where the insurance company set up as a counterclaim a bill of costs which accrued against plaintiff in a previous action in the federal court, a certificate by the clerk of the federal court reciting the amount due by plaintiff to the court and officers for services rendered is not admissible in evidence, although signed by the clerk and given under his seal; the certificate being the act of the clerk in his private capacity and not a cross-bill nor a copy of any record required to be kept by law.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

Action by Clara M. Manning against the Connecticut Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Byrns & Bean, of De Soto, and W. R. Gilbert, and Barclay, Fauntleroy, Cullen & Orthwein, all of St. Louis, for appellant. Edward Robb, of Perryville, for respondent.

NORTONI, J.

This is a suit on a policy of fire insurance. Plaintiff recovered, and defendant prosecutes the appeal.

On January 5, 1906, defendant issued to plaintiff the policy in suit in the amount of $3,000 covering a frame dwelling house situate in the village of Brewer in Perry county. A few days thereafter, on January 15, 1906, the building was totally destroyed by fire and hence this suit on the policy. The policy contains a provision to the effect that: "If the interest of the assured be or become other than the entire unconditional, unincumbered and sole ownership of the property, * * * this policy shall be void, unless otherwise provided by agreement indorsed hereon." At the time the policy was issued the property was incumbered by a certain deed of trust on which something between $400 and $500 was due to one Vessells, mortgagee. No indorsement was made on the policy touching this matter, and it seems the company refused to pay because of this fact.

Suit was instituted first in the circuit court of Perry county but thereafter removed on the application of defendant to the United States Circuit Court for the Eastern District of Missouri, where it was tried before a jury, and plaintiff prevailed. Defendant sued out a writ of error in the case and caused that judgment to be reviewed by the Circuit Court of Appeals of the Eighth Circuit. Upon such review, the United States Circuit Court of Appeals reversed and remanded the cause with an order to the United States Circuit Court to award a new trial. Thereafter plaintiff appeared in the United States Circuit Court at St. Louis and entered a voluntary nonsuit. After having thus taken a nonsuit in the federal court, plaintiff instituted the present suit on the policy in the circuit court of Perry county, but it was transferred to the circuit court of Jefferson county, through a change of venue on defendant's application.

By way of defense to the action, the answer sets forth the proceedings theretofore had in the federal court and pleads the judgment of nonsuit entered therein by plaintiff as conclusive between the parties; that is to say, as if it reveals a final determination of the rights of the parties. It is argued here that, as that judgment recites "that said defendant go hence without day and recover of said plaintiffs its costs and charges herein expended and have execution therefor," the rights of the parties are concluded thereby and that such judgment is a final one in favor of defendant. Obviously the argument is unsound for the reason that it omits to reckon with the preceding words of the judgment which in plain terms states that plaintiff took a voluntary nonsuit. All of the words of the judgment should be considered together to the end of ascertaining its true purport and determining what matters were concluded thereby. The judgment of nonsuit so entered in the federal court is as follows: "Now come plaintiffs by attorney and say they will no further prosecute this suit but voluntarily take a nonsuit. It is therefore considered by the court that the plaintiffs take nothing by their suit in this behalf and that said defendant go hence without day and recover of said plaintiffs its costs and charges herein expended and have execution therefor."

It should be said that both plaintiff and her husband were parties plaintiff to the suit in the federal court and therefore the judgment employs the plural number. Since that judgment, however, plaintiff's husband assigned his interest in the policy to his wife, and the suit now proceeds in her name (that is, Clara M. Manning) alone. The judgment above copied reveals a clear intention on the part of plaintiffs to voluntarily nonsuit their action, and the general words in the judgment which follows imply no more than such judgment concludes that particular suit and not the merits of the action, for, indeed, the merits were not then considered. Our Supreme Court has said that a judgment of nonsuit is a complete determination of the particular suit but not an adjudication of the merits of the controversy; that is, the cause of action between the parties. Wiethaupt v. City of St. Louis, 158 Mo. 655, 59 S. W. 960. Moreover it is said, too, that a judgment of nonsuit is not a final judgment upon the merits nor res adjudicata of the cause of action for the reason the court has no authority to render such a judgment after the nonsuit is entered, which in legal effect is but a dismissal of the cause of action. See Mason v. Kansas City Belt R. Co., 226 Mo. 212, 125 S. W. 1128, 26 L. R. A. (N. S.) 914. While the particular suit in which the nonsuit is taken is completely terminated and disposed of, it is certain that the cause of action is not merged in such a judgment as if a verdict and judgment thereon is given. On the contrary, where a voluntary nonsuit is taken the cause of action survives and may be further prosecuted. See State ex rel. v. Mo. Pac. R. Co., 149 Mo. 104, 109, 110, 50 S. W. 278.

But defendant relies upon the case of Francisco v. Chicago & A. R. Co., 149 Fed. 354, 79 C. C. A. 292, 9 Ann. Cas. 628, in which it is said a judgment identical with that involved here was declared by the United States Circuit Court of Appeals to be final in character and conclusive of all of the issues involved in the case. Though we have thoughtfully considered that case, we have been unable to discern such to be the result of the judgment there given. It does not appear from the report of the case the form of the judgment entered there, but it is said in the opinion to have been denominated by plaintiff as a judgment of involuntary nonsuit. The court treated and considered it as such and gave judgment to the effect that no review was allowable under the federal practice on writ of error from a mere judgment of nonsuit, whether voluntary or involuntary, and, indeed, puts the judgment on the ground that plaintiffs may institute a new...