Palmer v. Security Ins. Co. of New Haven, Conn.

• Decision Date: 07 December 1953
• Docket Number: No. 21884,21884
• Citation: Palmer v. Security Ins. Co. of New Haven, Conn., 263 S.W.2d 210 (Mo. App. 1953)
• Parties: PALMER v. SECURITY INS. CO. OF NEW HAVEN, CONN.
• Court: Missouri Court of Appeals

Page 210

263 S.W.2d 210

PALMER v.SECURITY INS. CO. OF NEW HAVEN, CONN.

No. 21884.

Kansas City Court of Appeals, Missouri.

Dec. 7, 1953.

Harry H. Kay, Eldon, Donnelly & Donnelly, Lebanon, for appellant.

Fields & Low, Lebanon, Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, and Donald J. Hoy, Springfield, for respondent.

DREW, Judge.

This action was brought to recover the full amount of an insurance policy for the sinking of a motor boat, and for damages for vexatious refusal to pay, and for attorneys' fees.The plaintiff(respondent) received a verdict and judgment for $1000, the full amount of the policy, $25 interest to date of trial, $100 damages and $500 attorneys fees, a total of $1625.The defendant has appealed.

Since the sufficiency of the petition is challenged we shall set forth the substance of the allegations thereof pertinent to the points here made.It was alleged that the defendant on June 7, 1951, issued to plaintiff the policy in question, whereby it insured him, among other things, against loss of or damage to the hull or machinery of a certain yacht called 'Delores' directly caused by breakage of shafts or any latent defect in the machinery or hull of said yacht, then the property of the plaintiff; that under the terms of the policy defendant also agreed that if the expense of recovering or repairing the yacht by reason of said loss or damage exceeded the agreed valuation of $1000, defendant would pay to plaintiff the sum of $1000 for a constructive total loss under the policy.It was further alleged that on a certain day in July, 1951, while the policy was in effect, and while the yacht was docked on navigable inland waters in the State of Missouri, the yacht sank as a direct result of a latent defect in its machinery; that the cost of recovering and repairing the yacht would far exceed the agreed valuation of $1000, whereby defendant at once became liable to plaintiff for the sum of $1000 under the terms of the policy.It is averred that plaintiff promptly notified defendant of the sinking of the yacht and the loss resulting therefrom, as required by the policy and by law; that plaintiff on a day in July, 1951, demanded payment of defendant of said loss, but defendant refused and still refuses to pay any part of same and has at all times denied liability therefor under its policy.It is alleged that such refusal was vexatious under the statutes because defendant denied liability at all times prior to the trial without giving any reason therefor, never has tendered a return of any part of the unearned premium paid, which paid for such insurance up to June 7, 1952, and that such denial of liability was without reasonable or probable cause or excuse.The prayer was for $1000, with interest thereon at 6 percent per annum from the date of demand, together with $100 damages for vexatious refusal to pay the loss, plus $500 as a reasonable attorneys' fee.

A motion to dismiss the petition was thereafter filed by defendant on the general ground of failure to state facts sufficient to state a cause of action.This motion was overruled.The answer of the defendant admitted the issuance of the policy and denied all of the other allegations of the petition.Further answering, defendant averred that plaintiff, in his written application for the policy, had represented the boat as a Hacker Boat Company yacht, built in 1945, as was described in the policy, whereas the boat was not built in 1945, nor by Hacker Boat Company, but was built prior to 1935, whereby defendant is not liable for a boat not described in the policy; that in such marine policy there is implied a warranty of seaworthiness; that the boat mentioned in the petition was not in a seaworthy condition, but was unseaworthy as to machinery and hull, particularly in that the stuffing box packing nut on the drive shaft was not secured by a lock nut, which permitted the stuffing box packing nut to come off and allow water to enter the hull; that the automatic bilge pump or bailer was so constructed and installed as some times to back-prime, thus causing water to be siphoned into the hull instead of out of it; that the stuffing box packing nut was off when the boat sank, causing water to enter the hull and the boat to sink, thus causing the supposed damage to the boat described in the petition; wherefore, defendant is not liable for such damage or any part thereof; that the provisions for payment under the policy are subject to the proviso therein that 'provided such loss or damage has not resulted from want of diligence by the owner of the said yacht, or any of them or by the manager, or by the assured'; that the conditions causing the boat to sink, as described in the answer, were the result of a want of diligence on the part of the plaintiff, owner and the assured.

At the opening of the trial defendant filed a motion for judgment on the pleadings, no reply having been filed.On request plaintiff was permitted to dictate a reply into the record, denying all the new matter set forth in the answer.

Defendant's first point is that the court erred in refusing to sustain its motion to dismissplaintiff's petition.It is contended that the petition failed to state a claim upon which relief can be granted, and that it fails to plead compliance with the terms of the policy which are conditions precedent to this action.It is first argued that the petition alleges plaintiff's ownership when the policy was issued, but fails to allege his ownership at the time of the loss.Even if there were otherwise any merit in this contention, suffice it to say that the point was waived in defendant's answer where, in pleading that the loss was due to the plaintiff's want of due diligence, defendant alleged 'that the supposed loss or damage mentioned in the petition resulted from want of due diligence on the part of the plaintiff, the owner of the said yacht and the insured under said policy of insurance'.It is next urged that the allegation in the petition that payment of the loss was duly demanded is a conclusion and does not comply with the provision of the policy that in case of loss it shall be paid in 30 days after proof of loss and proof of interest in the yacht.The petition alleged that the 'plaintiff forthwith notified the defendant of the aforesaid sinking of the said yacht and the loss resulting therefrom, as required by the terms of the policy and the laws of this state'.Such general allegation of compliance with the contract sued on is authorized by Section 509.170, RSMo 1949, V.A.M.S.

The second point relied on is that the court erred in refusing to sustain defendant's motions for a directed verdict offered, respectively, at the close of plaintiff's evidence and at the close of all the evidence.As to the former, defendant waived such motion by proceeding to offer evidence in its behalf.Porter v. Equitable Life Assur. Soc. of United States, Mo.App., 71 S.W.2d 766.

As to the motion for a directed verdict offered at the close of all the evidence it was in writing as follows: 'Comes now defendantSecurity Insurance Company of New Haven, Connecticut, at the close of all the evidence, and moves the court to direct a verdict for defendant for the reason that under the law and the evidence in this caseplaintiff is not entitled to recover'.Plaintiff strongly asserts that this motion was correctly overruled since it did not state the grounds therefor as required by the code, and for the further reason that it was without merit.The record does not disclose that there was any oral argument on this motion.The motion for new trial presented nothing more specific on this alleged error than was contained in the motion for a directed verdict.There is nothing of record to show that the grounds here relief on to support the motion were brought to the attention of the trial court.Section 512.160, subd. 1 RSMo 1949, V.A.M.S., provides that no allegations of error shall be considered on a civil appeal except such as have been presented to or expressly decided by the trial court.The section excepts questions of jurisdiction over the subject matter and questions as to the sufficiency of the pleadings to state a claim on which relief can be granted or a legal defense to a claim.Section 510.210, RSMo 1949, V.A.M.S., requiring statement of grounds with requests for court action and with objections to actions of the court, with certain exceptions, has been held to require motions for a directed verdict to state the grounds therefor.'New, since the adoption of the Civil Code of Missouri, we hold a motion for a directed verdict is insufficient save and except the movant'makes known to the court * * * his grounds therefor' in compliance with Section 122, Civil Code of Missouri,Laws of Missouri 1943, p. 389, Mo.R.S.A. Sec. 847.122[Section 510.210 RSMo 1949, V.A.M.S.], either in the motion or orally into the record of the trial court.'Oganaso v. Mellow, 356 Mo. 228, 201 S.W.2d 365, 366.The exact specification as stated in the motion herein, to-wit, 'under the law and the evidence plaintiff is not entitled to recover', have been held to be insufficient under Section 510.210.Schubert v. St. Louis Public Service Co., Mo.App., 206 S.W.2d 708, 710.In that casethe appellate court, nevertheless, considered the point because it appeared from the record therein that the motion was orally argued to the court and the grounds for the motion were presumably then brought to the attention of the trial court.In the Oganasocase, supra, the Supreme Court deemed it proper to consider the motion since it appeared to be a matter of plain error under Supreme Court Rule 3.27, vesting in the appellate court discretion to entertain such points even though not raised or preserved in the trial court, if manifest injustice or miscarriage of justice has resulted therefrom.However, since upon a study of defendant's argument on this point, the contention...