Martin v. Continental Ins. Co. of City of New York.

• Decision Date: 03 December 1923
• Docket Number: No. 14578.,14578.
• Citation: 256 S.W. 120
• Parties: MARTIN v. CONTINENTAL INS. CO. OF CITY OF NEW YORK.
• Court: Missouri Court of Appeals

256 S.W. 120

MARTIN v. CONTINENTAL INS. CO. OF CITY OF NEW YORK.

No. 14578.

Kanses City Court of Appeals. Missouri.

December 3, 1923.

Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.

"Not to be officially published."

Action by Edward Martin against the Continental Insurance Company of the City of New York. Judgment for plaintiff, and defendant appeals. Affirmed.

D. A. Murphy, of Nevada, Mo.; for appellant.

Chas. E. Gilbert, of Nevada, Mo., for respondent.

TRIMBLE, P. J.

This Is an action upon a fire insurance policy, wherein plaintiff sues for the full amount of his alleged loss, together with 10 per cent. damages and $250 attorney's fee for vexatious refusal to pay. Among other defenses, the company set up that the policy was rendered null and void by reason of the placing of a chattel mortgage upon a portion of the mortgaged property. Also that the company compromised and settled with plaintiff on the basis of $250 far the loss.

The jury returned a verdict for $800, the amount of loss sustained, with interest amounting to $24, and allowed $100 attorney's fee, but no damages for vexatious delay. The defendant appealed.

There is no dispute over the fact that, after the policy was issued, plaintiff placed a chattel mortgage on two horses for $70. When the policy was issued, it was obtained by plaintiff and his brother covering property owned by each respectively, though when the fire occurred none of the brother's property was burned. At the time the policy was issued, according to plaintiff's evidence, the brother told the agent, who was issuing the policy, and who countersigned it, that his property had a chattel mortgage on it, to which the agent replied, "That don't make any difference." Later, plaintiff mortgaged two of his horses for $70 to purchase a corn planter, and told the agent about the mortgage, to which the agent replied, "That don't make a bit of difference in the policy. It (the insurance) is all right."

Under this evidence, which we must accept as true for the purposes of ruling on the demurrer, the clause in the policy as to the effect of mortgaging the property was waived. Ward v. Concordia, etc., Ins. Co., 211 Mo. App. 554, 244 S. W. 959, 960. There was no offer to return the premium or any part thereof at any time, hence there was a waiver on this ground. Hamilton v. Firemen's, etc., Ins. Co. (Tex. Civ. App.) 177 S. W. 173; Leer v. Continental Ins. Co. (Mo. App.) 250 S. W. 631.

As to the defense that there had been a compromise and settlement of the claim at $250, there was no tender of said amount to plaintiff. Hence the so-called adjustment could not be successfully relied upon as an accord and satisfaction. Vining v. Franklin, etc., Ins. Co., 89 Mo. App. 311; Goff v. Mulholland, 28 Mo. 3.97; Gibboney v. German Ins. Co., 48 Mo. App. 185, 191.

The so-called adjustment cannot be relied upon to conclusively fix the amount of the loss. When the adjuster went to see plaintiff in order, as the adjuster himself says, "to look after the adjustment of this loss," plaintiff's evidence is that the adjuster had him to sign several papers which plaintiff says he did not read, relying on what the adjuster told him they were and what they contained. The adjuster's own testimony shows that plaintiff signed the so-called adjustment of loss without reading it. Plaintiff says the adjuster told him to sign it, and he, the adjuster, would send it in to the company to show it what he, the adjuster, thought the loss was. According to plaintiff's evidence, he merely signed the paper, but, when it was produced in court, it had a notary's seal and jurat attached to it, and in a column for the...