Manning v. Connecticut Fire Insurance Company
| Decision Date | 16 July 1913 |
| Citation | 159 S.W. 750,176 Mo.App. 678 |
| Parties | CLARA M. MANNING, Respondent, v. CONNECTICUT FIRE INSURANCE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jefferson Circuit Court.--Hon. E. M. Dearing, Judge.
AFFIRMED.
Judgment affirmed.
Byrns & Bean, W. R. Gilbert and Barclay, Fauntleroy & Cullen for appellant.
(1) The court erred in overruling the demurrers to the evidence. It is admitted that the policy was avoided by the mortgage and no facts are proven which show a waiver. Oehler v. Ins Co., 159 Mo.App. 708; Francis v. Lodge, 150 Mo.App. 347. (2) An agent for writing insurance has no authority to adjust or in any way to represent the company after a loss. Hauser v. Ins. Co., 66 Mo.App. 30. An agent authorized to collect premiums, in advance, cannot by collection, after a forfeiture, waive the forfeiture. Bouton v. Ins. Co., 25 Conn. 542; State ex rel v. Soc., 42 Mo.App. 485; Rogers v. Ins. Co., 155 Mo.App. 276; Sprague v. Ins. Co., 49 Mo.App 423. Failure to tender back premium is not a waiver. Ky. Co. v. Ins. Co., 146 F. 695; Ins. Co. v. Rosenfeld, 95 F. 358. (3) The court erred in not sustaining the motion for judgment on the pleadings. The answer alleges, and the reply admits, the bringing and the prosecution of the former suit, the identity of the cause, and the disposition thereof by a final judgment on the merits for the defendant. Lisle v. Rhea, 9 Mo. 172; Rogers v. Gosnell, 51 Mo. 466; Jones v. Hoppie, 9 Mo. 173; Francisco v. Railroad, 149 F. 354. (4) The court erred in excluding the certified bill of costs on which defendant has a valid counterclaim. It is not necessary that the judgment should fix the amount of the costs. The costs may be assessed generally, and when the items have been determined by the clerk, there is a valid judgment for this amount. Hazeltine v. Railroad, 39 Mo.App. 440; Cranor v. School Dist., 151 Mo. 119, 128; Kysar v. Growney, 114 Mo.App. 575; Crook v. Tull, 111 Mo. 291. The taxation is prima facie correct. Hazeltine v. Railroad, 39 Mo.App. 440; Tittmann v. Thornton, 53 Mo.App. 516. (5) The court erred in excluding the record of the proceedings in the Federal court and the copy of the opinion of the U. S. Court of Appeals. Manning v. Conn. F. I. Co., 160 F. 720; Hastings v. Hennessy, 70 Mo.App. 354; Board v. Bonebrake, 146 Ind. 313; Railroad v. Bridge Co., 215 Mo. 283; Bridge Co. v. Stone, 194 Mo. 175. And this cannot be avoided by a dismissal, and the recommencement in another court.
Edward Robb for respondent.
(1) The demurrers were properly overruled. Defendant's agent who issued, countersigned and delivered the policy, after he had knowledge of the incumbrance and of the fire and loss, collected the premium for the policy and remitted it to defendant, and defendant received the premium and has ever since retained it. This was a waiver of the forfeiture and defendant is estopped from setting it up as a defense. Rogers v. Insurance Co., 157 Mo.App. 671; Francis v. A. O. U. W., 150 Mo.App. 347; Rhodus v. Ins. Co., 156 Mo.App. 281; Sage v. Finney, 116 Mo.App. 30; Richter v. Protective Assn., 131 Mo.App. 496; Leech v. Telegraphers, 130 Mo.App. 5; Edmonds v. Modern Woodmen, 125 Mo.App. 214; Roark v. Surety Co., 130 Mo.App. 401; Trust Co. v. Ins. Co., 79 Mo.App. 362; Barnard v. Ins. Co., 38 Mo.App. 106; Hamilton v. Ins. Co., 94 Mo. 308; Wagaman v. Ins. Co., 110 Mo.App. 616; Baile v. Ins. Co., 73 Mo. 371; Andrus v. Ins. Co., 168 Mo. 166; Pelkington v. Ins. Co., 55 Mo. 177; Hearch v. Ins. Co., 130 Mo.App. 457; Bushnell v. Ins. Co., 110 Mo.App. 223; Suess v. Ins. Co., 86 Mo.App. 10; Summers v. Mut. Assn., 84 Mo.App. 605; Ins. Co. v. Raddin, 120 U.S. 183; Ins. Co. v. Wolf, 95 U.S. 332; Ins. Co. v. McCain, 96 U.S. 84; Dutton v. Ins. Co., Fed Cases 4, 211; ___ Cyc. 798; Glenn Ins. Co. v. Michaels, 74 N.E. 964; Scarrit Estate v. Casualty Co., 166 Mo.App. 567; Bell v. Ins. Co., 166 Mo.App. 390. (2) The entry of the judgment of nonsuit is in the usual form; it was such as should have been entered when plaintiff took a voluntary nonsuit, and it was not a judgment on the merits and is no bar to another suit. Whittelsey's Missouri Practice, 409; 16 Am. & Eng. Ency. of Law (1 Ed.), 730; Taylor v. Larkin, 12 Mo. 103; Bell v. Hoogland, 15 Mo. 360; Wells v. Moore, 49 Mo. 229; Wiethaupt v. St. Louis, 158 Mo. 655; Choteau v. Rowse, 90 Mo. 191; State ex rel. v. Railroad, 149 Mo. 109; Lee v. Kaiser, 80 Mo. 431; Karnes v. Ins. Co., 53 Mo.App. 438; Zellar v. Ranson, 140 Mo.App. 220; Burns v. Marsh, 144 Mo.App. 412; Dean v. Railroad, 148 Mo.App. 428; Swing v. Furniture Co., 150 Mo.App. 582; Mason v. Railroad, 226 Mo. 212. (3) The court properly excluded the abstract of costs offered by defendant. 1 Greenlief Ev. (Redfield's Ed.), sec. 498.
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 $ 3000, covering on 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 endorsed hereon." At the time the policy was issued, the property was encumbered by a certain deed of trust, on which something between four and five hundred dollars was due to one Vessells, mortgagee. No endorsement 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 latter court 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 state 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:
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.] 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 are 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. P. R. Co., 149 Mo. 104, 109, 110, 50...
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