Meier v. Eureka-Security Fire & Marine Ins. Co.
| Decision Date | 02 February 1943 |
| Docket Number | No. 26236.,26236. |
| Citation | 168 S.W.2d 127 |
| Court | Missouri Court of Appeals |
| Parties | MEIER v. EUREKA-SECURITY FIRE & MARINE INS. CO. OF CINCINNATI, OHIO. |
Appeal from St. Louis Circuit Court; Robert L. Aronson, Judge.
"Not to be reported in State Reports."
Action by Henry Meier against the Eureka-Security Fire and Marine Insurance Company of Cincinnati, Ohio, to recover on an oral contract of fire insurance, wherein defendant filed a demurrer. From a judgment for plaintiff, defendant appeals.
Affirmed.
Edwin A. Smith, of St. Louis, for appellant.
John T. Sluggett, of St. Louis, for respondent.
This suit was instituted by Henry Meier, as plaintiff, against The Eureka-Security Fire & Marine Insurance Company of Cincinnati, Ohio, as defendant, to recover on an oral contract of insurance. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff in the sum of $893.50. After an unavailing motion for a new trial defendant duly appealed.
Plaintiff's petition alleged that on August 21, 1939, he was the owner and in possession of a Fruehauf semi-trailer, 1934 model, serial No. E-28279; that on said date defendant entered into an oral contract of insurance with plaintiff whereby, in consideration of the sum of $24.80, the premium to be paid by plaintiff, defendant insured plaintiff for a term of one year from August 21, 1939, to August 20, 1940, against direct loss or damage by fire, lightning, transportation, theft, robbery and pilferage, to an amount not exceeding $800, to said Fruehauf trailer; that it was mutually agreed by and between plaintiff and defendant that in the event of any loss or damage plaintiff should protect said semi-trailer from further loss or damage, and that such act of plaintiff in recovering and preserving same should be considered as done for the benefit of all concerned without prejudice to the rights of either plaintiff or defendant, and that all reasonable expenses thus incurred should constitute a claim under said oral contract of insurance; that on September 22, 1939, said semi-trailer was totally destroyed by fire while on U. S. Highway No. 66 in the State of Illinois, the cause and origin of which was unknown to plaintiff; that thereafter plaintiff notified defendant of said loss by fire and furnished defendant with proof of loss, and on October 18, 1939, tendered to defendant the sum of $24.80 in payment of the premium for said insurance; that the reasonable value of said semi-trailer on August 21, 1939, and on September 22, 1939, was $800; that in protecting the salvage thereof plaintiff obligated himself to pay $93.50; that plaintiff demanded that defendant either pay $893.50 or repair the damage thereto, but defendant refused.
Plaintiff prayed judgment for $893.50 with interest, as well as ten per cent. for damages and a reasonable attorney's fee for alleged vexatious refusal of defendant to pay said loss.
The answer of defendant (filed after a general demurrer to plaintiff's petition had been overruled) generally denied each and every allegation contained in plaintiff's petition. The answer is entirely too long to set forth here. We shall refer only to those parts necessary to a determination of the questions raised on this appeal. Following the general denial, the answer contained allegations "that if there was a legal binding oral contract entered into between the above named plaintiff and the above named defendant (which this defendant denies) as pleaded in plaintiff's petition, it was merged in a subsequent written policy of insurance as hereinafter referred to," and, therefore, the oral contract was of no force and effect; that if there was a legal binding oral contract of insurance between plaintiff and defendant it was null and void because plaintiff misrepresented and miswarranted the facts in that he represented and warranted that he was the sole legal owner of said trailer; that its cost to plaintiff was $1,800, whereas, said representations and warranties were not true in that it was not a new trailer but a secondhand trailer when purchased by plaintiff and that the cost to plaintiff was $255, and not $1,800; that plaintiff knew said representations and warranties were not true; that defendant believed said representations and warranties, relied solely thereon, and entered into said alleged oral contract of insurance and subsequently issued its policy of insurance to plaintiff thereon; that said representations and warranties were made a part of the alleged oral contract by being referred to and incorporated therein; that said alleged oral contract of insurance made no mention of collision or upset coverage with a $50 deductible, premium $174, as requested by plaintiff, and did not mention tornado and other coverage, as requested by plaintiff.
The answer contained a number of lengthy paragraphs setting forth various propositions with respect to "the usual conditions contained in a written contract of insurance, or policy of insurance, or uniform form of policy." Among such allegations we find the following: "Defendant further states it is the law of the State of Missouri that whenever two parties enter into an oral contract of insurance, it is presumed the said parties intended the said oral contract of insurance should contain the usual conditions contained in a written contract of insurance, or policy of insurance, or a uniform form of policy of insurance in accordance with the statutes of the State of Missouri in such cases made and provided." Then followed, in the answer, allegations to the effect that one of the usual conditions contained in a written contract of insurance, or uniform form of policy, is that the insurer, in consideration of the premium, insures the assured for the term specified, to an amount not exceeding the cash value of the property at the time any loss or damage occurs; that the policy is made and accepted subject to provisions, exclusions, conditions and warranties set forth therein, and that it shall be void in event of violation by the assured of any agreement, condition or warranty therein, and that the entire policy shall be voided if the assured has concealed or misrepresented any material fact or circumstances concerning the insurance or subject thereof, or in case of any fraud, attempted fraud or false swearing by the insured touching any matter relating to said insurance, whether before or after loss. Defendant then alleged that by reason of said misrepresentations and miswarranties of plaintiff, defendant considered said alleged oral contract of insurance null and void, and not binding upon defendant, because there was no legal consideration whatsoever; that there was no mutuality in said oral contract because there was no meeting of the minds of the parties thereto; that defendant never did agree to or accept the terms of said alleged oral contract; that plaintiff never paid any part of the premium on said alleged oral contract, hence defendant could not tender back to plaintiff said premium or any part thereof. Defendant further pleaded what it stated was the usual condition in all fire insurance policies, that if the trailer was rented under contract or lease, defendant would not be liable for loss or damage; that defendant never agreed to any such renting or leasing; that at the time of the fire, on September 22, 1939, the trailer was so rented or leased, by reason of which the oral contract of insurance was breached, thereby voiding same. Defendant further pleaded what it stated were the usual conditions in policies with respect to plaintiff furnishing defendant with proof of loss and that the proof of loss furnished by defendant did not comply therewith, which constituted a breach of the alleged oral contract of insurance. Defendant then set forth at length in its answer the facts which it averred led up to the issuance by it of a printed and written policy of insurance, a photostatic copy of which was attached to the answer and was later introduced in evidence as defendant's Exhibit I. Defendant then pleaded the conditions of said printed and written policy and alleged that said policy was a standard form of policy issued to all policy holders in accordance with Missouri statutes and, as stated by defendant in its brief, "pleaded the same and other defenses as it did to the alleged oral contract of insurance."
After the court, on plaintiff's motion, had stricken out a number of parts of defendant's answer, plaintiff filed a reply generally denying the new matter in the answer.
Defendant contends that the court erred in refusing to sustain its general demurrer to plaintiff's petition, and in refusing to sustain its ore tenus demurrer at the beginning of the case. These two points may be disposed of together. We have heretofore set forth the allegations of the petition from which we think it is clear plaintiff stated a cause of action on an oral contract of insurance. The petition alleged facts which, taken as true, as they must be on demurrer, showed that defendant entered into an oral contract of insurance with plaintiff who was averred to be the owner and in possession of the property insured. All the necessary elements of an oral contract of insurance were alleged, concluding with averments of a loss within the terms of the contract and a refusal by defendant to pay.
Defendant argues, however, that plaintiff's cause of action was based on an oral contract, and that oral contracts of insurance are not permissible under Section 5940, R.S.Mo.1939, Mo.R.S.A. § 5940, because said section refers to and contemplates only written policies of insurance. It is true said section does provide for a written uniform form of policy of fire insurance, but there is no provision in said section or elsewhere, to our knowledge, prohibiting oral contracts of insurance. The general rule on this subject is that if the statute contains...
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