McNeill v. Fidelity & Cas. Co.
| Decision Date | 07 May 1935 |
| Docket Number | No. 32544.,32544. |
| Citation | 82 S.W.2d 582 |
| Court | Missouri Supreme Court |
| Parties | MINNIE McNEILL v. FIDELITY & CASUALTY COMPANY OF NEW YORK, a Corporation, Appellant. |
Appeal from Circuit Court of City of St. Louis. — Hon. Albert D. Nortoni, Judge.
AFFIRMED.
Wayne Ely and Tom Ely, Jr., for appellant.
(1) Throughout the trial of this case the court repeatedly made improper comments and statements in the presence and hearing of the jury which were prejudicial to this appellant, and were unwarranted, and the court should have sustained the appellant's objection to such comments. McElwain v. Dunham, 221 S.W. 773; Schmidt v. Railroad Co., 149 Mo. 269, 50 S.W. 921; State ex rel. v. Manhattan Rubber Mfg. Co., 149 Mo. 181, 50 S.W. 321; Hutchinson v. Richmond Safety Gate Co., 247 Mo. 71, 152 S.W. 52; Clear v. Van Blarcom, 241 S.W. 81; Mahaney v. Kansas City, etc., Co., 46 S.W. (2d) 817; Yeaman v. Johnson, 263 S.W. 147; Hardin v. Railroad Co., 70 S.W. (2d) 1075. (2) The insurer had no contract with the Marquette Hotel Company, a corporation, and never agreed to insure it nor indemnify it against any loss or damage. Therefore, the defendant's demurrer should have been sustained. Newark Fire Ins. Co. v. Turk, 6 Fed. (2d) 533; Rendelman v. Levitt, 24 S.W. (2d) 213; Springfield Fire & Marine Ins. Co. v. Boon, 194 S.W. 1006; Davis v. Ins. Co., 154 Iowa, 326, 134 N.W. 860; So. Surety Co. v. MacMillan Co., 58 Fed. (2d) 541; Guarantee Co. v. Mechanics, etc., Co., 183 U.S. 402, 22 Sup. Ct. 124, 46 L. Ed. 253. (3) Instruction B was a peremptory instruction to the effect that there was no evidence that the policy sued on in this case, which was issued by the garnishee company in favor of Charles E. Hallenbeck, was transferred before January 24, 1928, to the Marquette Hotel Company, a corporation, and therefore the verdict of the jury must be in favor of the garnishee. The evidence in this case shows that the policy was issued in favor of said Hallenbeck, and fails to show that said policy was ever transferred, or that said Hallenbeck ever requested the transfer of said policy to the Marquette Hotel Company, a corporation. Therefore the instruction should have been given. McElwain v. Dunham, 221 S.W. 773; Schmidt v. Railroad Co., 149 Mo. 269, 50 S.W. 921; State ex rel. v. Manhattan Rubber Mfg. Co., 149 Mo. 181, 50 S.W. 321; Hutchinson v. Richmond Safety Gate Co., 247 Mo. 71, 152 S.W. 52; Clear v. Van Blarcom, 241 S.W. 81; Mahaney v. Kansas City, etc., Co., 46 S.W. (2d) 817; Yeaman v. Johnson, 263 S.W. 147; Hardin v. Railroad Co., 70 S.W. (2d) 1075. (4) Instruction E presented garnishee's theory of the case. It was supported by ample evidence, and by the law, and if the jury believed the evidence adduced in favor of the garnishee, as it had a right to do, and believed that there had been no transfer of insurance policy No. 5300327 from Charles E. Hallenbeck to the Marquette Hotel Company, a corporation, it would have been the duty of the jury to return a verdict in favor of garnishee. Bloecher v. Duerbeck, 62 S.W. (2d) 553; Fenton v. Hart, 73 S.W. (2d) 1934; Harlan v. Ry. Co., 73 S.W. (2d) 749; Root v. Railroad Co., 237 Mo. 640, 141 S.W. 610; Cahn v. Reid & Bungardt, 18 Mo. App. 115; Ridens v. Ridens, 29 Mo. 470; McKnight & Brady v. Wells, 1 Mo. 13; Coleman v. Roberts, 1 Mo. 97. (5) The court erred in overruling objections to improper comments of plaintiff's counsel throughout the trial and during the argument. Buck v. Buck, 267 Mo. 644; Stanton v. Jones, 19 S.W. (2d) 510; Neff v. Cameron, 213 Mo. 350; Jackman v. Ry. Co., 206 S.W. 244; Beer v. Martel, 55 S.W. (2d) 482.
Strubinger & Strubinger and Freeland L. Jackson for respondent.
(1) A statement by the judge, presiding at the trial of a cause, of a correct rule of law applicable to the case, or a correct statement as to what issues are involved, or defining the issues in the case, or his reasons for admitting or excluding particular evidence as the grounds for his ruling, is not improper, or ground for objection, because made in the presence and hearing of the jury. Ferguson v. Home Ins. Co., 236 S.W. 402; 64 C.J., p. 101, sec. 105, p. 95, sec. 99; Sheets v. Ins. Co., 153 Mo. App. 632, 135 S.W. 84; R.S. 1929, sec. 5902; Friedman v. United Rys. Co., 238 S.W. 1074, 293 Mo. 235; Moore v. Railroad Co., 283 S.W. 735; Cunningham v. Doe Run Lead Co., 26 S.W. (2d) 961; Whitley v. Stein, 34 S.W. (2d) 1001; Riley v. Ry. Co., 68 Mo. App. 652. (2) A foreign insurance company can transact business, contract and issue policies of insurance, only by and through its lawfully constituted resident agent, and such agent has power to bind company by oral contract, assent to assignment of policy or waive any conditions contained in the policy as to manner of assignment or otherwise, and his acts in pais showing intent to waive conditions of policy binds company, and the execution by such agent of an assignment, apart from the policy, mailed to broker or agent of insured, is delivery to the insured. Paetz v. London Guar. & Acc. Co., 71 S.W. (2d) 826; R.S. 1929, sec. 5902; Sheets v. Iowa State Ins. Co., 135 S.W. 80; Ferguson v. Home Ins. Co., 236 S.W. 402; Burdick v. Security Life Assn., 77 Mo. App. 629; Elliott on Insurance, sec. 157; Wolf v. Hartford Fire Ins. Co., 269 S.W. 705; Home Ins. v. Woods, 274 S.W. 521; Block v. United States F. & G. Co., 290 S.W. 429; Godwin v. Iowa State Ins. Co., 27 S.W. (2d) 464. (3) The record is replete with evidence of a completed, valid and subsisting assignment of the policy in question to Marquette Hotel Company, a corporation, and therefore defendant's Instruction B was, by the court, properly refused. R.S. 1929, sec. 5902; Sheets v. Iowa State Life Ins. Co., 135 S.W. 80; Ferguson v. Home Ins. Co., 236 S.W. 402; Burnham v. Greenwich Ins. Co., 63 Mo. App. 85; Burdick v. Security Life Assn., 77 Mo. App. 629; Elliott on Insurance, sec. 157; Wolf v. Hartford Fire Ins. Co., 269 S.W. 705. (4) Any provision, rule or requirement in the policy of a foreign insurance company written in Missouri, that may run counter to the statutes, are of no force and effect, and an instruction which attempts to charge the jury that an assignment can only be made in the manner prescribed in the policy, when the evidence clearly shows that an assignment was made in a different manner by the company's resident agent who has authority to waive provisions of policy by virtue of Section 5902, Revised Statutes 1929, would be erroneous. Defendant's Instruction E was properly refused. R.S. 1929, sec. 5902; Ferguson v. Home Ins. Co., 236 S.W. 403; Pritchard v. Fire Ins. Co., 203 S.W. 223; Bealmer v. Fire Ins. Co., 193 S.W. 849; Bohannon v. Ill. Bankers' Life Assn., 20 S.W. (2d) 951; Doty v. Western & So. Life Ins. Co., 16 S.W. (2d) 715. (5) The court did not err in overruling objections made by garnishee to comments of plaintiff's counsel during trial of case. Threadgill v. United Rys. Co., 214 S.W. 163; Ryans v. Hospes, 67 S.W. 285; Ferguson v. Home Ins. Co., 236 S.W. 402; Levels v. Ry. Co., 94 S.W. 275; 64 C.J., p. 101, sec. 105, p. 95, sec. 99; Dawson v. Railroad Co., 193 S.W. 43; 64 C.J., pp. 274-275, sec. 292. (6) Under the evidence in this case the plaintiff was entitled to a directed verdict. The directed verdict should have been given, either on the theory that the policy in suit was transferred to the Marquette Hotel Company according to its terms, or on the theory that the insurance company waived the terms of the policy providing the method of transferring the policy to a new owner, and is estopped to deny the validity of the transfer in the form made. Sec. 5902, R.S. 1929; Home Ins. Co. v. Woods, 274 S.W. 520; Ferguson v. Home Ins. Co., 236 S.W. 402; Compton Hts. Laundry Co. v. Ins. Co., 190 S.W. 382; City Light, Power, Ice & Storage Co. v. St. Mary's Mach. Co., 156 S.W. 86.
Respondent, Minnie McNeill, on January 24, 1928, was injured while a guest at the Marquette Hotel in St. Louis, Missouri. She obtained a judgment for her injuries against the hotel company in the sum of $7,500. Subsequently, in an effort to collect her judgment she instituted garnishment proceedings against appellant in this case, Fidelity & Casualty Company of New York. This company defended on the theory that its public liability policy, issued September 26, 1927, was not in force on the date respondent was injured. Upon a trial of the case there was a verdict and judgment against appellant in the sum of $8,803.64, representing the original judgment and interest. From this judgment appellant duly appealed.
On September 6, 1927, appellant issued its public liability insurance policy, No. 5300327, in favor of Charles E. Hallenbeck, who was at that time operator of the Marquette Hotel. On December 29, 1927, Hallenbeck transferred the hotel to the Marquette Hotel Company, a Missouri corporation, which company operated the hotel until about February 1, 1928, when the assets of the company were placed in the hands of Mr. Lawrence Sturgis Day, who took charge of the hotel as trustee for the first mortgage bondholders.
Appellant, in its brief, aptly stated the issue in the case as follows:
The policy of insurance contained provisions specifying in what manner it could be assigned. Blank forms of assignments were printed on the back of the policy. The requirement for the transfer of the policy was that insured was required to assign the policy subject to the written consent of appellant company. Provisions in the policy, covering indorsements, read as follows:
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