Patterson v. American Ins. Co.

• Decision Date: 06 October 1913
• Citation: 174 Mo. App. 37,160 S.W. 59
• Parties: PATTERSON v. AMERICAN INS. CO. OF NEWARK, N. J.
• Court: Missouri Court of Appeals

160 S.W. 59

174 Mo. App. 37

PATTERSON v. AMERICAN INS. CO. OF NEWARK, N. J.

Kansas City Court of Appeals. Missouri.

October 6, 1913.

1. INSURANCE (§ 382)—VACANCY—"WAIVER."

An agreement between plaintiff and the agent of defendant insurance company, which had insured plaintiff's property, that if it should become vacant he would attach a vacancy permit to the policy did not constitute a waiver of a forfeiture for a vacancy subsequently occurring, since there can be no waiver of a forfeiture until after the ground for forfeiture has occurred.

2. INSURANCE (§ 668)—FIRE POLICY—VACANCY—ACTION—QUESTION FOR JURY.

In an action on a fire policy, evidence held to require submission to the jury of the question whether plaintiff notified defendant's agent before the loss that the property had become vacant and requested the attachment of a vacancy permit.

3. INSURANCE (§ 666)—FIRE POLICY—VACANCY—WAIVER—LIMITATION OF LOSS.

Where a vacancy permit was not attached to the policy sued on, and plaintiff was permitted to recover on the theory that the forfeiture because of vacancy without a vacancy permit was waived, he was entitled to recover the full face of the policy and not three-quarters thereof as would have been provided by a vacancy permit if issued; the waiver being of the forfeiture of the policy and not of the issuance of the vacancy permit.

4. INSURANCE (§ 372) — VACANCY — FORFEITURE —WAIVER.

A condition in a fire policy for forfeiture in case the property becomes vacant may be waived, and if proper notice of vacancy is given the policy will remain in force until the insurer takes action to terminate the insurance.

5. INSURANCE (§ 668)—SETTLEMENT—VEXATIOUS DELAY—QUESTION FOR JURY.

Whether an insurance company has been guilty of vexatious delay in settling a loss is for the jury only when, from a general survey of all the facts and circumstances in the case, an inference can be drawn that the refusal to pay was unjustifiable and vexatious.

6. INSURANCE (§ 602)—FIRE POLICY—LOSS—REFUSAL TO SETTLE—PENALTY—"VEXATIOUS DELAY."

In an action on a fire policy, defendant claimed a forfeiture because of vacancy. On the first trial plaintiff relied on an oral agreement by the insurance agent that if the property became vacant in the future he would attach a vacancy permit. This defendant contended was invalid, which contention was upheld on appeal, and on the second trial plaintiff was permitted to recover by proving notice of vacancy to the agent prior to loss and a failure of the insurer to cancel the policy, the receipt of which notice was denied. Held, that the failure to settle the loss was neither unjustifiable nor vexatious so as to render defendant liable to a penalty and for plaintiff's attorney's fees under Rev. St. 1909, § 7068, authorizing a recovery of a penalty and attorney's fees in an action on a policy where defendant's failure to pay was unjustifiable and vexatious.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by Henry M. Patterson against the American Insurance Company of Newark, N. J. Judgment for plaintiff, and defendant appeals. Affirmed on condition.

Fyke & Snider, of Kansas City, for appellant. Yates & Mastin, of Kansas City, for respondent.

TRIMBLE, J.

For the second time this case is here on appeal by defendant. See Patterson v. Insurance Co., 164 Mo. App. 157, 148 S. W. 448. The suit is on a fire insurance policy covering a farmhouse. The policy contained a clause that: "If the building insured be or become vacant and unoccupied without the consent of the Western manager of this company indorsed hereon, then this policy shall be null and void." There is no doubt but that the property became vacant some time, perhaps two months, before it burned on February 10, 1908.

At the first trial, considered on appeal in 164 Mo. App., the defense was made that the house was vacant and no consent thereto or vacancy permit had been obtained, and the policy was therefore by its terms null and void. To meet this defense plaintiff urged that, before the vacancy occurred, he had an agreement with defendant's agent that, if the property became vacant at any time in the future, he would attach a vacancy permit, and therefore there was a waiver of the forfeiture in the policy as to vacancy without consent. On appeal, however, this court held that such agreement, before the vacancy, could have no effect because there can be no waiver of a forfeiture until after the ground of forfeiture has occurred and remanded the case for a new trial on the ground that, while plaintiff could not avoid the forfeiture because of such prior waiver, yet there was some evidence tending to show that plaintiff, after the vacancy and about three weeks before the fire, had notified the defendant's agent of the vacancy and requested him to issue and attach a vacancy permit, and, if this were true, defendant had, by failing to act, waived the forfeiture.

Upon a second trial this feature of the case was litigated and a verdict for plaintiff was returned for the full amount of the policy, with interest, and $75 additional as 10 per cent. damages, and a further sum of $112.50 as a reasonable attorney's fee for vexatiously refusing to pay the amount due plaintiff.

Defendant contends that the case should be reversed because plaintiff's own testimony, and the conceded circumstances under which the notice and request are claimed by him to have been made, show that no notice was ever given or request made. This contention requires an examination of the testimony.

Plaintiff was living in Oklahoma. The house in question was in Jackson county, Mo., near Independence. Plaintiff had an agent at Independence, named Noland.

Plaintiff's claim that he notified Rider, defendant's agent, of the vacancy and to put a vacancy permit on the policy is based on his testimony that on January 21, 1908, he wrote Rider, defendant's agent, at Independence, Mo., as follows: "I have been informed that my house upon which I hold American Insurance policy has become vacant. Please see that vacancy permit is placed." Defendant's agent Rider denied ever receiving such a letter. Plaintiff introduced in evidence a pencil copy of such alleged letter; the defendant not producing the original on notice to do so. The testimony of plaintiff that he wrote such a letter on January 21, 1908, would not appear strange were it not for the fact that on February 13, 1908, three days after his house burned, he wrote to his agent Noland, saying: "Yours of the 10th at hand saying that my house had burned down. Have you gotten any particulars in the case since writing? Now, Mr. Noland, I want you to give to me the two following points, namely, how long has the house been vacant, and have you had a vacancy permit on, or did you have a vacancy permit on when the house burned? Please write me these questions by return mail, and don't say a word to the insurance agent about this as it may cut a figure in the way of getting my insurance."

On March 15, 1908, plaintiff again wrote his...