Peck v. Great Am. Ins. Co.

• Decision Date: 27 January 1936
• Docket Number: No. 18323.,18323.
• Citation: 90 S.W.2d 415
• Parties: M.L. PECK, RESPONDENT, v. GREAT AMERICAN INSURANCE CO., APPELLANT.
• Court: Missouri Court of Appeals

90 S.W.2d 415

M.L. PECK, RESPONDENT, v. GREAT AMERICAN INSURANCE CO., APPELLANT.

No. 18323.

Kansas City Court of Appeals. Missouri.

January 27, 1936.

Appeal from Circuit Court of Cass County. — Hon. Leslie A. Bruce, Judge.

APPEAL DISMISSED.

T.N. Haynes, Lamkin A. James and Clarence A. Chilcott for respondent.

Thomas & Thomas and Crouch & Crouch for appellant.

SHAIN, P.J.

We gather from all the documents filed in this case that this is a suit for loss by fire of a dwelling house in Slater, Saline County, Missouri, that belonged to Frank R. Miller and Ethel Miller, his wife, who held title to estate by entirety. It appears that the Great American Insurance Company of New York had issued to the Millers a fire insurance policy on their dwelling house for the sum of $4,000. It appears that the policy in question has provision for arbitration in case of loss and that there had been an attempt to make an award by arbitration and that, for reasons declared upon as fraudulent, said award was not accepted by the Millers.

It is further shown that the Millers made a full assignment of their claim against the insurance company to one M.L. Peck and Peck brought the present suit against the insurance company.

The suit is for the full face of the policy together for interest and penalties and attorney fees.

There was a trial before a jury and a verdict was rendered in favor of the plaintiff for the full amount of the policy, interest, damages and attorney fees amounting to $5,049.42.

Judgment was entered in accordance with the verdict. Thereafter a voluntary remittitur for $38.50, same alleged as interest accruing on the amount of $3,850, was made by plaintiff. From this judgment the defendant insurance company has appealed.

To conform to the situation as presented in the circuit court, the respondent will hereinafter be referred to as plaintiff and the appellant as defendant. This case was returnable to the October term, 1935, of this court and docketed to be heard on the fourth day of the December, 1935, call to-wit, December 5, 1935.

The appealing defendant filed a printed abstract of record on February 20, 1935, and filed brief on November 15, 1935. On November 27, 1935, the plaintiff filed two motions to dismiss the defendant's appeal. The first motion was based upon an allegation of violation of rule fifteen of this court and charges that the printed abstract filed by the defendant did not set forth the full abstract of the record and that the abridgment as filed is not sufficient to a full understanding of all the questions presented for our decision.

The above motion was supplemented by an additional abstract of the record. This additional abstract does not purport to supply, so as to present with the one filed, a complete abstract but purports only to be sufficient to sustain defendant's motion. This additional abstract was filed November 27, 1935.

In addition to above the defendant also filed, for the inspection of the court in passing upon the motion, the full typewritten bill of exception consisting of 423 pages.

The second motion filed by defendant is a motion to dismiss the appeal based upon alleged violation of rule sixteen of this court, wherein it is provided that, "the statement filed by the appellant shall consist of a clear and concise statement of the case without argument reference to issues of law or repetition of testimony of witnesses."

It is the usual custom of this court to dispose of motions for dismissal of appeals prior to the date set for hearing. However, the motions and voluminous documents in support were filed too late for proper inspection and consideration before date set for hearing and the case was presented by oral argument and defendant given ten days for a reply brief and suggestions in opposition to motions filed. The defendant on December 14, 1935, filed its reply brief and suggestions and the motions are taken up with the case and receive first consideration.

OPINION ON MOTIONS.

As the defendant's first motion charges insufficient abstract to permit the court to pass upon questions presented, we follow the usual course of examination of an appellant's brief to ascertain what questions are presented for our decision. In so proceeding, we first turn to the statement of the case. To follow in logical sequence, we herein give consideration first to the plaintiff's motion directed to defendant's statement.

In the statement complained of herein, which consists of fourteen printed pages, the first clause is as follows:

"This was a suit upon a fire insurance policy, brought by the plaintiff (respondent) as the assignee of Frank R. Miller and Ethel Miller, arising out of a fire loss to a dwelling house of the Millers in Slater, Missouri. From a verdict and judgment in favor of the plaintiff, the defendant has appealed."

Further along in the statement, the following clause appears:

"The trial resulted in a verdict for the plaintiff in the sum of $3,950, representing the amount of fire damage, with $506.92 interest, damages of $192.50 for vexatious refusal to pay, and an attorney fee of $500. Motions for a new trial and in arrest of judgment were timely filed by the defendant, and, following a voluntary remittitur of $38.50 by the plaintiff on the award of interest, said motions were overruled, and the defendant prosecutes this appeal."

Outside of the above, the statement proceeds to give a full page of purported synopsis of the plaintiff's petition; follows with a page of synopsis of defendant's answer and then proceeds with a full page synopsis of plaintiff's reply.

Following the above, the statement proceeds to briefly state the defendant's evidence in something more than three pages and follows this up by what purports to be a statement of the testimony of each of twelve witnesses offered by plaintiff. This consumes four more pages. In the following four pages the statement purports to briefly state the testimony of six witnesses on behalf of defendant and one witness offered in rebuttal.

That the statement is in violation of the rule of this court goes without question. The conclusions of this court, touching the compliance with our rule...