McLain v. Atlas Assur. Co., Limited, of London, England

• Citation: 67 S.W.2d 849
• Decision Date: 06 February 1934
• Docket Number: No. 22866.,22866.
• Parties: McLAIN et al. v. ATLAS ASSUR. CO., LIMITED, OF LONDON, ENGLAND.
• Court: Court of Appeal of Missouri (US)

67 S.W.2d 849

McLAIN et al. v. ATLAS ASSUR. CO., LIMITED, OF LONDON, ENGLAND.

No. 22866.

St. Louis Court of Appeals. Missouri.

February 6, 1934.

Appeal from Court of Common Pleas, Cape Girardeau County; L. L. Bowman, Judge.

"Not to be published in State Reports."

Suit by George P. McLain and others against the Atlas Assurance Company, Limited, of London, England. Judgment for plaintiffs, and defendant appeals.

Affirmed.

B. Hugh Smith and R. P. Smith, both of Cape Girardeau, for appellant.

J. Grant Frye and R. L. Dearmont, both of Cape Girardeau, for respondents.

HOSTETTER, Presiding Judge.

This is a suit on a fire insurance policy which was begun on November 14, 1932, in the Cape Girardeau court of common pleas. The petition was in conventional form.

The facts of the case are as follows: The insured property was a two-story ten-room dwelling, situated in the city of Cape Girardeau. The property was insured for $1,500 against fire by a policy issued by defendant on February 15, 1931, for one year, and the same was totally destroyed by fire on November 14, 1931, during the life of the policy. The plaintiff George P. McLain owned a curtesy interest in the property, and his coplaintiffs, Harry Lee McLain and Nell Leonora Starnes, were his children and together owned the remainder interest subject to the curtesy interest of their father. The title to the property had been in Sallie McLain, deceased wife of George P. McLain, who died intestate on January 4, 1920. This being before curtesy was abolished in Missouri, left the title as above stated.

The son and daughter did not, at the time the insurance was taken out, live in Cape Girardeau, but both lived out of the state, and their father, George P. McLain, occupied the property and had occupied it ever since the death of his wife, and the two children really had nothing to do with it in the way of paying taxes or looking after it or otherwise.

George P. McLain testified that he took out the insurance through Robert Wilson, agent for the defendant company; that he told the agent, at the time the insurance was procured, that it had been his wife's property and that it had always been insured since her death in the name of Sallie McLain estate; and he further testified that he told the agent that Sallie McLain was his wife and that she was dead and that the agent knew the facts, anyway, about his wife's death, and that the children were her heirs, and about him being the widower, and that the agent said that he had an interest in the property as well as the children, and therefore he would insure it in the name of all three of them.

Robert Wilson, the agent, was put upon the stand by the defendant and in effect substantiated the testimony of George P. McLain. He testified that McLain advised him about the facts concerning the title as stated by him, and after a discussion he (the agent) concluded that he would write it in the name of all three, that is, the father and the son and the daughter; that it was manifest that the father had an interest in the property as well as the son and the daughter, and that neither he nor McLain, being lawyers, knew what interest each might have, but that they understood that the three owned the property; and that he put the names of all three in the policy as owners and collected the premium and delivered the policy to McLain.

The principal defense urged at the trial was that the dwelling house was burned by one Simmons at the instance of George P. McLain. Simmons was arrested some time after the fire and made a confession to the officers that he set the building on fire under a promise from George P. McLain that he would give him $100 out of the insurance money, when collected, for so doing. He later entered a plea of guilty to the charge of arson and was given a term in the state penitentiary.

His deposition, taken while he was an inmate of the penitentiary, on behalf of the defendant, was offered and read by the defendant at the trial. In this testimony he went back on his previous statement that George McLain had hired him to set fire to the house and said it was not true. He gave as his reason for setting fire to the house that it was because of some trouble he had had about a woman named Alda, who formerly lived in the dwelling.

He further testified that shortly before the fire he went to McLain's home to see the girl and he got into an argument with McLain over a gambling game and the girl together, and that McLain got a hammer and made him leave; that the girl later told him that McLain said if he ever caught him at the house again he was going to have him arrested and that shortly thereafter he (Simmons) set the house on fire; that he was unfriendly with McLain at the time he set the house afire and had no love for him yet, and that he did not know at that time that the house was insured, and that he was trying to help himself when he implicated McLain.

McLain in his testimony gives this version of the hammer incident: That he did not know this man Simmons by that name, and that the name of the man who came there the night of the hammer episode might have been Simmons, and, anyway, that he came to see the girl, and that he and this man played some games of seven up, and the man claimed that he (McLain) owed him $50 for having lost out in this card playing, and that he asked him to let him go to a room with the girl, and that he (McLain) then got the hammer and ran him off and threatened him if he ever came back again.

It was in evidence that the dwelling was used for a rooming house; that several families had occupied rooms in the house, but that at the time of the fire there was only one person staying there and that was the girl who was keeping house for McLain; that McLain at that time was working at a Greek restaurant and the girl herself was also working at the same restaurant; and that a Greek, also working at the restaurant, was sleeping in the house at night.

McLain further testified that he had nothing to do with the fire and really didn't know Simmons by name unless the man who was there the night of the hammer episode was Simmons. McLain was never arrested on a charge of arson.

It was admitted that proofs of loss had been made and that Sallie McLain originally owned the property and that she died intestate on January 4, 1920, leaving George P. McLain, her husband, and the two children (plaintiffs), surviving, and the demand of payment and its refusal by defendant.

The court gave two instructions on behalf of the plaintiff, as follows:

Instruction No. 1. "The court instructs the jury that the burden of proof that plaintiffs, or either of them, set fire to, or caused fire to be set to, the house in question, is upon the defendant, and unless defendant has sustained this burden to your satisfaction by the preponderance or greater weight of the evidence, your verdict will be for plaintiffs."

Instruction No. 2. "The court instructs the jury that if you find and believe from the evidence that the policy in question was issued by defendant company on or about the 5th day of February, 1931, and that thereafter on or about the 14th day of November, 1931, and while said policy was in full force and effect the property insured under the terms of said policy was destroyed by fire and if you should further find that proof of loss was duly made to said company by the plaintiffs and that demand for payment of the insurance was made by plaintiffs and refused by defendant; and if you should further find that the plaintiffs were the owner of said property at the time said policy was issued and at the time said fire occurred, then your findings should be for the plaintiffs in the sum of $1500.00, plus interest from the 14th day of January, 1932, at the rate of 6 per cent. per annum."

The court gave five instructions on behalf of the defendant.

Instruction No. 4, given for defendant, reads as follows: "The court instructs the jury that the interest of plaintiff George P. McLain in and to the dwelling house insured was a curtesy estate as the surviving husband of Sally McLain, deceased, and consisted of the right to use and enjoy said dwelling house, together with the rents and profits therefrom for and during the natural life of said plaintiff, George P. McLain, and that the interest of said plaintiff, George P. McLain in and to the insurance fund here sued for is the same as his interest in and to said dwelling house insured. You are further instructed that under the mortality tables which form a part of the law of Missouri, the present cash value of the curtesy interest of said George P. McLain in and to the insurance fund here sued for is $564.93, and if you find for defendant insurance company as to the interest of said plaintiff, George P. McLain, as explained in other instructions then your verdict must be for the other plaintiffs for the sum of $1500.00 less the present cash value of the interest of said George P. McLain therein as above explained and you cannot find for the remaining plaintiffs in a greater sum than $935.07, together with interest thereon at 6 per cent. from the 14th day of January, 1932."

The next instruction given for the defendant was to the effect that if plaintiff George P. McLain either burnt the building, or procured it to be burnt by any other person, then the verdict should be against him and in favor of the defendant as to the interest of George P. McLain as explained in other instructions.

The next instruction advised the jury that, while the burden of proving that George P. McLain procured the burning of the house was upon defendant, but it was only sufficient if that fact was established by a preponderance of all the facts and circumstances in the case, and that the same degree of proof would not be required as in a criminal case, and if the jury was convinced from all the facts and circumstances in evidence that it was more probable that George P. McLain...