Miller v. Phenix Fire Ins. Co.

• Citation: 9 S.W.2d 672
• Decision Date: 11 June 1928
• Docket Number: No. 16347.,16347.
• Parties: MILLER v. PHENIX FIRE INS. CO. OF PARIS, FRANCE.
• Court: Court of Appeal of Missouri (US)

9 S.W.2d 672

MILLER v. PHENIX FIRE INS. CO. OF PARIS, FRANCE.

No. 16347.

Kansas City Court of Appeals. Missouri.

June 11, 1928.

Rehearing Denied July 9, 1928.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially reported."

Action by L. V. Miller against the Phenix Fire Insurance Company of Paris, France. Judgment for plaintiff, and defendant appeals. Affirmed.

Crow & Newman, of Kansas City, for appellant.

Clarence M. Gorrill and Borders & Borders, all of Kansas City, for respondent.

WILLIAMS, C.

This is an action on the policy of fire insurance.

The facts show that prior to 1923, a Mr. Stowell was the agent of the defendant insurance company and had written insurance on the office equipment of the plaintiff for several years. One policy of $2,500 had been carried with defendant insurance company and expired on or about November 21, 1923. Prior to that time Mr. Stowell had severed his connection with the defendant company and was representing the State's Assurance Company. A short time prior to November 21, 1923, Mr. Stowell, representing the State's Assurance Company, and Mr. Woods, representing the Phenix Fire Insurance Company, sent to the plaintiff herein policies covering plaintiff's office equipment. These policies were in the sum of $2,500 each. Mr. Woods, who was at that time representing the defendant company, testified that the Phenix policy was issued and credit extended to Dr. Miller; that a bill was mailed on or about December 1, 1923; and that a charge was made against Dr. Miller on his books for the premium. He further testified that the policy had been fully issued, but there was a question as to whether or not it should be canceled. On the question of cancellation, or rather substitution, Dr. Miller in his deposition testified as follows:

"Q. (By Mr. Crow) Don't you know that that policy in the State's Assurance Company was taken out in lieu of the policy issued by the Phenix? A. Absolutely not.

"Q. There was nothing of that kind? A. Absolutely not."

The plaintiff herein had various conversations with Mr. Woods, representing the Phenix Fire Insurance Company, and Mr. Woods asked Dr. Miller to pay the premium on the Phenix policy, and Dr. Miller promised he would on the next day. Mr. Woods told Dr. Miller that any time within 45 days of the issuance of the policy would be all right. Some time between November 21, 1923, and January 4, 1924, the policy disappeared from the office of Dr. Miller. It found its way, probably through Mr. Stowell's office, into Mr. Woods' office. While the evidence is conflicting under the verdict of the jury, we would conclude that the policy sued on was taken from Dr. Miller's office without his knowledge or consent. A fire occurred on the night of January 3, or the morning of January 4, 1924. The State's Assurance Company paid one-half of the agreed damage, which was $1,476.15. Dr. Miller filed proof of loss on the policy in suit, but the defendant refused to pay the loss. It was shown that the policy sued on had been mutilated and subsequently lost, so that plaintiff could not produce it at the trial. Dr. Miller testified, however, that the policy covered everything in his office. The conversations between Mr. Clay Woods or those representing him, and this plaintiff, were conducted over the telephone. Dr. Miller was unable to identify the voice of the person talking.

A verdict was returned for $1,736.18. After an unsuccessful motion for a new trial, defendant brings the case here on appeal.

It is first contended that the court erred in permitting witnesses to testify that some person, who stated his name was Woods, talked over the telephone in regard to the policy.

Telephone conversations have been before the court in several cases. In the case of Wolfe v. Missouri Pacific R. Co., 97 Mo. 473, loc. cit. 481, 482, 11 S. W. 49, 51 (3 L. R. A. 539, 10 Am. St. Rep. 331), the court said:

"A question arose incidentally at the trial upon the admission in evidence of a conversation held through the telephone between some one at the instrument in plaintiffs' private office and the witness. It was admitted, though the...