Patterson v. American Ins. Co. of Newark

• Citation: 164 Mo. App. 157,148 S.W. 448
• Parties: PATTERSON v. AMERICAN INS. CO. OF NEWARK.
• Decision Date: 03 June 1912
• Court: Court of Appeal of Missouri (US)

148 S.W. 448

164 Mo. App. 157

PATTERSON v. AMERICAN INS. CO. OF NEWARK.

Kansas City Court of Appeals. Missouri.

June 3, 1912.

1. APPEAL AND ERROR (§ 928)—RECORD— QUESTIONS PRESENTED FOR REVIEW.

Where plaintiff's instructions do not appear in the record on appeal, the refusal of instructions requested by defendant cannot be reviewed, all presumptions being in favor of the correctness of the rulings of the trial court.

2. INSURANCE (§ 323)—FIRE INSURANCE— VACANCY OF BUILDING.

The stipulation in a fire policy that it should become void if the house should be vacant or unoccupied during the term of the insurance is one which the parties may lawfully make, and to which effect must be given, unless it appears that it was abrogated by subsequent agreement, or waived by the insurer.

3. INSURANCE (§ 144)—FIRE INSURANCE— MODIFICATION OF CONTRACT.

An oral agreement made after the writing of a fire policy, to the effect that the insurer would grant a vacancy permit if a future vacancy should occur, although the policy provided for a forfeiture if the premises should become vacant or unoccupied during the term, cannot be enforced without a new consideration, for, while the parties to a contract have the power to modify it, there must be a sufficient consideration for the modification to give it contractual force.

4. INSURANCE (§ 372)—FIRE INSURANCE— WAIVER OF GROUND OF FORFEITURE.

Where a fire policy provided that it should cause a forfeiture if the premises should be or remain vacant during the term, evidence of an oral agreement by the insurer's agent that a vacancy permit would be issued if the premises should ever become vacant, and that a forfeiture would not be insisted upon, is not admissible to show a waiver of any future vacancy which might occur, since there can be no waiver of a forfeiture which has not yet occurred.

5. TRIAL (§ 178)—PEREMPTORY INSTRUCTIONS.

Evidence offered by the plaintiff, although contradicted by other evidence, must, for the purpose of determining the allowance of a peremptory instruction, be considered as true.

6. INSURANCE (§ 388)—FIRE INSURANCE— ESTOPPEL.

Where a fire policy provided for forfeiture in case the premises became or remained vacant, and the insured knowing that the premises were vacant notified the insurer, requesting a vacancy permit, the insurer, having remained quiescent until a loss occurred, cannot set up the condition, for it was its duty, unless it intended to be further bound, or to continue the risk, to notify the insured of its intention to enforce the forfeiture.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by Henry M. Patterson against the American Insurance Company of Newark. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Fyke & Snyder, of Kansas City, for appellant. Reed, Atwood, Yates, Mastin & Harvey, of Kansas City, for respondent.

JOHNSON, J.

This is a suit on a policy of fire insurance issued February 5, 1905, to H. S. Flanders on a farm dwelling. In August, 1906, plaintiff became the owner of the property and the assignee of the policy. February 10, 1908, the dwelling was destroyed by fire, and defendant refused to pay the loss on the ground that plaintiff had allowed the house to become vacant and to remain so without obtaining a permit from defendant continuing the policy in force. This suit followed.

The petition is in the usual form. The answer pleads the following special defense: "Further answering defendant alleges it is provided in said policy as follows: `It is agreed that if any of the above-mentioned buildings be or become vacant and unoccupied without the consent of the Western Manager of this company endorsed hereon then this policy shall be null and void.' Defendant alleges that after said policy was issued and before the fire the building described in said policy became vacant and unoccupied, and said building was so vacant and unoccupied at the time of the fire, and had been vacant and unoccupied for a long time prior thereto, all without the consent of the western manager of the defendant indorsed on said policy, by reason whereof defendant says said policy became and is null and void." The reply is a general denial. Plaintiff prevailed in the circuit court where he recovered judgment for the amount of the insurance, the statutory penalty for a vexatious refusal to pay, and his attorney's fees assessed at $150. Defendant appealed.

The policy contains the stipulation pleaded in the answer, and it is conceded that the house was vacant about two months before the fire. Plaintiff lived in Oklahoma, and had an agent in Independence to look after the farm which is in the vicinity of that city. Plaintiff testified that on January 17, 1908, he received information from his agent that the tenant who had been occupying the house had moved away, and that on January 21, 1908, he mailed the following letter to defendant's agent at Independence through whom he had transacted business with defendant: "I have been informed that my house upon which I hold American insurance policy has become vacant. Please see that the vacancy permit be placed." Plaintiff does not claim to have received an answer to this letter, and defendant's agent denies receiving it. About two weeks after the fire, plaintiff wrote defendant's agent: "Yours of recent date was duly received, replying will state that adverse to your understanding I was not aware that the house in question was vacant until about the time that the fire occurred, this being the case along with circumstances as named in previous letter, I am unable to...