Moore v. Home Ins. Co., 5322.

• Decision Date: 21 June 1934
• Docket Number: No. 5322.,5322.
• Parties: MOORE v. HOME INS. CO.
• Court: Missouri Court of Appeals

73 S.W.2d 297

MOORE v. HOME INS. CO.

No. 5322.

Springfield Court of Appeals. Missouri.

June 21, 1934.

Appeal from Circuit Court, Dunklin County; James V. Billings, Judge.

"Not to be published in State Reports."

Action by A. J. Moore against the Home Insurance Company, a corporation. Verdict for defendant, and, from a judgment granting plaintiff's motion for new trial, defendant appeals.

Reversed and remanded, with directions to enter judgment for defendant.

Bradley, McAnally & Bradley, of Kennett, for appellant.

ALLEN, Presiding Judge.

The petition in this case was filed in the circuit court of Dunklin county, Mo., on December 7, 1932. The substance of the allegations therein was as follows:

That T. Paul King, as one of the appellant's agents, in November, 1931, orally agreed with respondent that in consideration of the payment of the premium therefor, within thirty days from the date, a policy of fire insurance should be written and delivered to him (King) to deliver the same to respondent, which policy of fire insurance in the appellant company was to insure respondent for a period of one year against loss by fire on his one-story shingle roof dwelling house in Kennett, Mo., for the sum of $1,500 and $1,000 on plaintiff's household and kitchen furniture in said dwelling house; that he did not pay the premium to said King at the time, because it was the custom of said agent to collect thirty days after said policies were delivered; that no written application was made for said policy, because none was required; that it had been the custom of the agents to make oral contracts for insurance without written applications therefor; that he had tendered to defendant's agent the premium, but the receipt thereof was refused, and that appellant, through its agent, the said King, refused to issue and deliver said policy; that on December 7, 1931, the said dwelling house and its furnishings were partially destroyed and damaged by fire; and praying judgment therefor, in the full sum of $2,500.

The evidence was that respondent, prior to November 16, 1931, and to that date held a policy of insurance, theretofore issued by appellant on the house and household goods mentioned in his petition. The policy had theretofore been issued by appellant company in the same amounts mentioned in his petition, and which was on said November 16, 1931, by appellant canceled.

S. R. Longgrear testified that he was on November 16, 1931, chief of the fire department of Kennett, Mo.; that on that day the respondent made the following statement to him: That if "I would let his house burn he would give me $25.00 for being 25 minutes late, for delaying the truck to his fire; let his house burn and protect the surrounding property. That he was figuring on buying a farm in Arkansas, and was going to use this money. I believe he told me he had $2,500.00 insurance. I asked if he was going to set it afire and he said `a man who lived between Kennett and Hayti was going to touch the house off and he said you don't know him.' That was on Monday morning and he said it would happen Tuesday week about two in the morning. I told him I wouldn't do it. I notified Mr. King, and reported the conversation to Mr. Donaldson the Sheriff of Dunklin County, and also related the conversation to the prosecuting attorney of the county."

The conversation of plaintiff occurred about 8:30 in the morning, and was reported by the fire chief to the sheriff about 9 o'clock, and to King, the insurance agent about 10 o'clock of the same morning. Witness said he had known respondent for about eight or ten years; that at the time Moore had lost his position with the fire department; that he and respondent had not had any trouble and were the best of friends; that respondent was not a man who indulged in joking; that the house was to be burned eight days from the day he talked to him, the fire chief. The fire occurred December 7th, three weeks after Moore talked to witness. Witness said he went to the fire; that there was no flue in the room where the fire occurred. He tried to ascertain a cause for the fire, but could not find any; did not talk to Moore while he was at the fire.

King, the local agent for appellant, testified that, after Longgrear, the fire chief, told him of the conversation he claimed respondent had with him (the chief), he (King) got in touch with respondent the same morning and canceled the policy of insurance then held by respondent on the property mentioned, and did not promise to write another policy for him, on the same property, as was testified to by respondent.

The respondent had testified that King said he would write him another and different policy on the same property, and that he would have 40 days from the date of the issuance thereto in which to pay the premium. No further policy was issued by the appellant company.

The verdict of the jury was for the defendant (appellant). Respondent's motion for new trial was based upon five grounds and sustained by the trial judge on the fifth, and in the following language: "That the court erred in admitting the testimony of S. R. Longgrear, relative to a premeditated fire under an existing policy, which led to cancellation of same, just before the alleged oral contract for insurance on the same...