Michigan Fire & Marine Ins. Co. v. Magee

• Decision Date: 07 February 1949
• Parties: Michigan Fire & Marine Insurance Company, a Corp., Appellant, v. Julia E. Magee, Julia E. Magee, Administratrix, etc., Respondents
• Court: Kansas Court of Appeals

218 S.W.2d 151

240 Mo.App. 767

Michigan Fire & Marine Insurance Company, a Corp., Appellant, v. Julia E. Magee, Julia E. Magee, Administratrix, etc., Respondents

Court of Appeals of Missouri, Kansas City

February 7, 1949

Delivered

Appeal from Circuit Court of Clay County; Hon. James S. Rooney Judge.

Reversed and remanded with directions.

Alvin C. Trippe, Hale Houts and Hogsett, Trippe, Depping & Houts for appellant.

(1) The only person insured by the policy was Julia E. Magee in her individual capacity and the only interest insured was her interest in the property as an individual. Julia E. Magee Administratrix, Oliver E. Magee and Mary Evelyn Casto were not parties to the policy and the policy did not cover any interest of such parties in the property. None of the defendants other than Julia E. Magee in her individual capacity have any claim against plaintiff. Estes v. Great American Ins. Co., Mo. App., 112 S.W. 2d 153, syl. 11 to 14, at 158-9; LaFont v. Home Ins. Co., 193 Mo.App 543, 182 S.W. 1029, 1031 (1); Neuner v. Gove, Mo. App., 133 S.W. 2d 689, 694 (opinion by Judge Bland); State ex rel. and to the Use of Alport v. Boyle-Pryor Const. Co., 352 Mo. 1061, 180 S.W. 2d 727, syl. 4 and 5; J. B. Colt Co. v. Gregor, 328 Mo. 1216, 44 S.W. 2d 2, syl. 2; Iowa-Missouri Walnut Co. v. Grahl, 237 Mo.App. 1093, 170 S.W. 2d 437, syl. 1; Davidson v. Eubanks, Mo. Sup., 189 S.W. 2d 295, 296; Rinkel v. Lubke, 246 Mo. 377, 392, 152 S.W. 81; Sec. 114(d), Civil Code of Missouri. (2) Plaintiff is not liable to defendant Julia E. Magee for more than her interest in the property. Lighting Fixture Supply Co. v. Pacific Fire Ins. Co. of N. Y., 176 La. 499, 146 So. 35, 38, syl. 5 and 6; Summer v. Stark County Patrons' Mut. Ins. Co., 63 Ohio App. 369, 23 N.E.2d 1021; Brant v. D. F. I. Co., S. C., 183 S.E. 587; Chambers v. North British & Mercantile Ins. Co., La. App., 175 So. 95, syl. 1, 2, 3 and 4, at pages 96-97; Lyles v. National Liberty Ins. Co., La. App., 182 So. 181, 183; Lyles v. National Liberty Ins. Co., La. App., 182 So. 183; LaFont v. Home Ins. Co., 193 Mo.App. 543, 182 S.W. 1029; Section 5930, R. S. Mo., 1939. (3) The interest of defendant Julia E. Magee was her dower interest in the property, the value of which was $ 1606.18. Graves v. Cochran, 68 Mo. 74; Chrisman v. Linderman, 202 Mo. 605, 621, 100 S.W. 1090; Coleman v. Coleman, 122 Mo.App. 715, 718, 99 S.W. 459; Secs. 306, 318, 328, 608, 614, R. S. Mo., 1939; Cassidy v. Pound, 167 Mo. 605, 610, 67 S.W. 283; Secs. 3522 to 3524, R. S. Mo., 1939; Chambers v. North British & Mercantile Ins. Co., 175 So. 95, 96-7. (4) The court also erred in finding and entering judgment against plaintiff for a penalty and attorneys' fees. Sanderson v. New York Life Ins. Co., Mo. App., 194 S.W. 2d 221, 228; Kossmehl v. Millers National Ins. Co., 238 Mo.App. 671, 185 S.W. 2d 293, 297; Harms v. Mutual Life Ins. Co., Mo. App., 127 S.W. 2d 57, syl. 4; Berryman v. Maryland Motor Car Ins. Co., 199 Mo.App. 503, 506-7, 204 S.W. 738; Volz v. Travelers Ins. Co., Mo. App., 161 S.W. 2d 985, 994; State ex rel. Gnekow v. U. S. F. & G. Co., Mo. Sup., 163 S.W. 2d 86, 90; Howard v. Aetna Life Ins. Co., 350 Mo. 17, 164 S.W. 2d 360, 366; Callahan v. Connecticut General Life Ins. Co., Mo. Sup., 207 S.W. 2d 279, 290; Suburban Service Bus Co. v. National Mutual Casualty Co., 237 Mo.App. 1128, 183 S.W. 2d 376, 378. (5) This Court should reverse the judgment of the Circuit Court and enter a new judgment limiting plaintiff's liability to liability to defendant Julia E. Magee individually for $ 1606.18 with interest at 6 per cent per annum from the date of the fire, giving her a judgment for such amount and discharging plaintiff as to all other defendants. Section 14(d), Civil Code of Missouri; Sutton v. Gilbert, Mo. App., 193 S.W. 2d 928, 929.

James E. Campbell, Wherritt & Sevier and Harry A. Hall for respondent.

(1) Julia Magee's interest as administratrix entitled her to judgment for the full amount of the insurance as a matter of law, since the loss was total. Estes v. Gt. American Ins. Co., 112 S.W. 2d 153: Sauner v. Phoenix Ins. Co., 41 M. A. 480; Finney v. Warren Ins. Co., 41 Mss. 16; Hanover Fire Ins. Co. v. Street, 176 So. 350; Baird v. Fidelity Phoenix Ins. Co., 162 S.W. 2d 384, 178 Tenn. 653, 44 C. J. S. 879. (2) Under the valued policy law defendants were entitled to judgment for the full amount of the policy as a matter of law. Mo. R. S. A. 5930, 5931; LaFont v. Home Ins. Co., 182 S.W. 1029, 193 M. A. 543; King v. Phoenix Ins. Co., 92 S.W. 892, 195 Mo. 290; Hayward v. Fidelity Phoenix Ins. Co., 285 S.W. 144; Hartford Ins. Co. v. Clark, 122 So. 571, 154 Miss. 418. (3) Oliver Magee and Mary Evelyn Casto were proper parties. Mo. R. S. A. 847.11, 847.16; Sauner v. Ins. Co., 41 M. A. 480; Citizens Trust Co. v. Tindle, 199 S.W. 1025, 272 Mo. 681; Jones v. K. C. & M. R. Co., 77 S.W. 890, 178 Mo. 528; Leeper v. Lyon, 68 Mo. 216; Perry Admr. v. Roberts, 23 Mo. 221. (4) The Company was liable for penalties and attorneys' fees under the statute. Mo. R. S. A. 6040; Burneson v. Mass. Bonding Co., 205 S.W. 2d 239; Hawkins v. Wash. Natl., 78 S.W. 2d 543, 230 Ap. 882; Boillot v. Income Gnty., 231 Ap. 990, 83 S.W. 2d 219; Christy v. Gt. Northern, 162 S.W. 2d 601. (5) Respondent is entitled to the assessment of additional damages of ten per cent. Mo. R. S. A., 847.140; Boillot v. Income Gnty. Co., 120 S.W. 2d 74.

OPINION

Dew, J.

Plaintiff, appellant, brought suit against respondents for declaratory judgment to determine the rights of the parties under a fire insurance policy and respondents filed joint answer and cross petition. The judgment was in favor of the defendants on plaintiff's petition, and in favor of defendants on their cross petition in the sum of $ 5000 on the policy, plus $ 320.83 interest, $ 500 as penalty, and $ 750 attorneys' fees, totaling $ 6,570.83. From the above judgment the plaintiff appealed.

The following facts are either stipulated or stand uncontroverted. O. F. Magee and Julia E. Magee were husband and wife, and at the time of his death were living in the dwelling house in Clay County, Missouri, which is the building covered by the fire insurance policy involved. There were no children of this marriage, but O. F. Magee had two children by a former marriage, defendants Oliver E. Magee and Mary Evelyn Casto. On October 8, 1945, O. F. Magee died intestate, leaving surviving him his widow, defendant Julia E. Magee, and said two children of the deceased. The title to the dwelling mentioned stood in the name of O. F. Magee alone at the time of his death. Defendant Julia E. Magee was appointed administratrix of the estate of O. F. Magee and is still acting as such. There had been no admeasurement of the widow's dower. On November 13, 1945, upon her petition, the Probate Court authorized her to take charge of the real estate of the deceased.

During the lifetime of O. F. Magee the plaintiff, through its agent, Albert Fuson, had handled the insurance for him and had written a policy on the dwelling house, expiring May 23, 1946, following his death. On the date of the expiration of that policy the plaintiff issued to defendant Julia E. Magee its policy now in question insuring the building for a term of one year, in the amount of $ 5000, which policy she had kept in her lock box since its delivery and had not looked at it since until the date of the fire. That policy provided, among other things, that it insured "Julia E. Magee (Route 8, North Kansas City 16, Missouri)" to an amount "not exceeding $ 5000 * * * nor in any event for more than the interest of the insured" against loss by fire of "a shingle roof frame two-family dwelling * * *".

On March 21, 1947, the dwelling house described in the policy was totally destroyed by fire. Its reasonable value at that time was conceded to be $ 7200. On April 21, 1947, claim was made by "Julia E. Magee, insured", together with proof of loss, for the payment of the full amount of the policy, $ 5000. Within 60 days thereafter, to wit, May 16, 1947, the plaintiff herein, through its attorney, wrote to the attorney preparing that claim and proof of loss, the following:

"* * * It is our opinion that at the time this fire occurred the assured owned only a one-third interest in the property for life. The policy provides that the company is not liable in any event for more than the interest of the assured. The company is willing to pay her for her interest in the property under the policy, and takes the position that she is not entitled to recover for more than her interest".

In May 1947, Oliver E. Magee and Mary Evelyn Casto (codefendants in the present cause) brought suit against defendant Julia E. Magee, Julia E. Magee as administratrix, and her bondsmen, and against the plaintiff in the present suit, wherein they charged that Mrs. Magee had violated her duty by failing to secure insurance to protect the estate and heirs, and had negligently procured a policy insuring the property from the Michigan Fire & Marine Insurance Company for $ 5000, payable to Julia E. Magee, as an individual, and not in her representative capacity; that a fire occurred, resulting in a total loss of the improvements on said real estate so insured, amounting to a value in excess of the amount of the policy; that such insurance was for the use and benefit of the plaintiffs therein as sole heirs of said estate; that Julia E. Magee was entitled only to insure her dower interest, and that the plaintiffs had been informed that the policy was issued to her without naming her in her official capacity as such administratrix. That petition further alleged that the insurance company (plaintiff in the present cause) claimed that the policy did not insure any interest of the estate, administratrix or...