Parks v. Hartford Fire Ins. Co.
| Decision Date | 10 February 1890 |
| Citation | 12 S.W. 1058,100 Mo. 373 |
| Parties | Parks et al. v. The Hartford Insurance Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. A. M. Thayer Judge.
This is an action upon a policy of fire insurance issued May 12 1884, by defendant, at Texarkana, Texas, to M. V. Flippin insuring the latter in the sum of three thousand dollars for one year, against loss by fire on a three-story building occupied by him there. The policy permitted seventeen thousand, five hundred dollars total concurrent insurance "subject to the three-fourths value clause," and made the "loss, if any, payable to Meyer & Aronson, or order, of St. Louis, as their interest may appear." It will not be necessary to state the pleadings at length.
The facts disclosed at the trial are mostly undisputed. Those which have a material bearing on the errors assigned on the present appeal will be noted.
When the policy sued on was issued Flippin occupied part of the insured building as a place of business, but his home was elsewhere in the town. He was the head of a family and a citizen of Texas. Before he took the policy he conveyed the building and lot on which it stood to Meyer & Aronson for twenty-five thousand dollars, due them by him, and on the same day Meyer & Aronson reconveyed the property to Flippin for the same recited consideration, evidenced by promissory notes of the latter which were made a vendor's lien on the property by recitals in them and in the deed. When Meyer & Aronson received the policy now in suit, they indorsed and delivered it for value, along with Flippin's notes, to the Mechanics' Bank to whose rights plaintiffs are successors.
Some three months before the loss which led to this litigation Flippin with his family moved into the south half of the insured building. He occupied it as his homestead until the fire, February 21, 1885. Shortly before that date defendant's agent at Texarkana took steps toward terminating the risk on its part (as the policy permitted), but before that object had been accomplished the fire intervened. It is not claimed by defendant that the policy had then ceased to be operative.
After these steps to cancel it had been initiated, defendant's agent told Flippin that the insurances (including this one) had all been canceled. Thereupon the latter applied to the East Texas Fire Insurance Company for five thousand dollars' insurance on the property in question, representing it as uninsured, and received from that company a policy for twenty-five hundred dollars only. This supposed insurance has been denied by the latter company and payment refused on the ground of that alleged misrepresentation. The cause was tried by Judge Thayer, who found for plaintiffs in the sum of $ 2,522.40 predicated on a valuation of the destroyed property at eight thousand dollars.
It will not be essential to set forth the instructions in full in view of the conclusions reached upon the material points of the controversy. The controlling facts are practically conceded.
The finding for less than the face of the policy was based on a clause in it to the effect that "in no case shall the claim be for a greater sum than the actual damage to or cash value of the property at the time of the fire, nor shall the assured be entitled to recover of this company any greater proportion of the loss or damage than the amount hereby insured bears to the whole sum insured on said property, whether such other insurance be by specific or by general or floating policies and without reference to the solvency or the liability of the other insurers." In estimating the total amount of concurrent insurance the trial court excluded the policy in the East Texas Fire Insurance Company already mentioned, which left the total contributing insurance twelve thousand, five hundred dollars. The laws of Texas were introduced in evidence at the trial.
One of the main objections to plaintiffs' right of recovery rests on the terms of the constitution of that state relating to homesteads, viz.:
Defendant appealed from the finding and judgment against it, after the usual motions and exceptions. The errors alleged are discussed in the opinion.
Affirmed.
Noble & Orrick for appellant
(1) Under the issues made by the pleadings, respondents were not entitled to recover, unless it appeared from the evidence that they had the insurable interest in the property covered by the policy stated in their petition. The notes for purchase money executed by Flippin, being the evidence of such insurable interest as set forth in the petition, are without consideration and void, and hence an insurable interest cannot be based upon them; these notes were, in effect, a mortgage on Flippin's homestead; under the constitution and laws of Texas such mortgage is illegal and void. (2) The respondents, having failed to establish an insurable interest through the notes, attempted to show against the objection of appellant, that Flippin owed Meyer & Aronson twenty-five thousand dollars on general account, and that such indebtedness to Meyer & Aronson was evidence of an insurable interest in respondents Parks and others. This was error: (a) Because in showing this there would have been substantial variance between the pleadings and the proof which is not permissible. (b) Because, even if permissible, there is no evidence in the record that Meyer & Aronson assigned or transferred to respondents this account for twenty-five thousand dollars against Flippin; the notes only were transferred. (3) The transfer of deeds between Meyer & Aronson and Flippin on the --- day of ---, 1884, was a fraud on the homestead laws of Texas and was so intended by them. It follows that Meyer & Aronson, or their assigns, the respondents, cannot enforce the notes resulting from the fraud, or obtain any benefit from or proceeds of a policy of insurance, in aid of such notes. Constitution of Texas, art. 16, secs. 50 and 51; Gen. Stat. Texas, ch. 1, art....
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