Rodgers v. Western Home Town Mutual Fire Insurance Company
| Decision Date | 15 February 1905 |
| Citation | 85 S.W. 369,186 Mo. 248 |
| Parties | RODGERS v. WESTERN HOME TOWN MUTUAL FIRE INSURANCE COMPANY, Appellant |
| Court | Missouri Supreme Court |
Transferred from St. Louis Court of Appeals.
Affirmed.
Milton & Goodwin and James O. Livesay for appellant.
There was no case made out against appellant because the petition fails to allege ownership in the property at the time of the issuance of the policy, and fails to plead ownership at the time of the fire. Before plaintiff can recover at all he must show ownership at the time of the issuance of the policy. Story v. Ins. Co., 61 Mo.App. 534; Harness v Ins. Co., 62 Mo.App. 245; Clevinger v. Ins Co., 71 Mo.App. 73; Wolf v. Ins. Co., 75 Mo.App. 306.
John F. Black for respondent.
(1) The petition was sufficient, the evidence sustaining the allegations of the petition, the insurance policy being part thereof. (2) If defendant relied on its demurrer, it should have refused to plead. Grove v. Kansas City, 75 Mo. 672; Hurst v. Ash Grove, 96 Mo. 168; Johnson v. Railroad, 96 Mo. 340; Buck v. Railroad, 46 Mo.App. 555.
This is an action on a five hundred dollar fire insurance policy to recover two hundred dollars for the loss of a certain frame house, one hundred and fifty dollars for the household and kitchen furniture therein, with ten per cent thereon for vexatious delay, and fifty dollars attorney's fee, as provided by section 8012, Revised Statutes 1899. The plaintiff recovered a judgment in the circuit court for three hundred and ninety dollars and twenty-five cents, being two hundred dollars for the house, one hundred and thirty-five dollars and twenty-five cents for the furniture, thirty dollars damages for vexatious delay, and twenty-five dollars attorney's fee. The defendant appealed to the St. Louis Court of Appeals, where the judgment was affirmed, but that court certified the case to this court, because it was of opinion that its opinion was in conflict with the opinion of the Kansas City Court of Appeals, in the case of Clevinger v. Ins. Co., 71 Mo.App. 73.
Section 6 of the amendment of 1884 to article 6 of the Constitution provides that: "When any one of said courts of appeals shall in any cause or proceeding render a decision which any one of the judges therein sitting shall deem contrary to any previous decision of any one of said courts of appeals, or of the Supreme Court, the said court of appeals must, of its own motion, pending the same term and not afterward, certify and transfer said cause or proceeding and the original transcript therein to the Supreme Court, and thereupon the Supreme Court must rehear and determine said cause or proceeding, as in case of jurisdiction obtained by ordinary appellate process; and the last previous ruling of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said courts of appeals."
The purpose of this provision is to secure uniformity in the decisions in the several courts of appeals, and to require the courts of appeals to conform their decisions to the decisions of the Supreme Court, to the end that there may be one, certain and uniform rule of judicial law in all parts of the State.
It will be observed that the letter of the Constitution provides for the court of appeals certifying the cause to this court only where a member of such court of appeals shall deem the decision of that court to be contrary to a previous decision of any one of said courts of appeals or of the Supreme Court, and that the letter of the provision does not provide for such certification where the whole court of appeals, or even a majority thereof, so regard the decision of such court. It has accordingly been held, for instance, that where such court of appeals deems its decision to be contrary to a decision of this court, no power to certify the cause to this court exists, but that it is the duty of such court of appeals to correct its own decision so as to make it conform to the decisions of this court. [Bank v. Woesten, 144 Mo. 407, 46 S.W. 201; Schafer v. Railroad, 144 Mo. 170.]
It has also been held that the fact that a decision of one of such courts of appeals is in conflict with a previous decision of the same court, was no reason for certifying the cause to this court, for in such case the court of appeals had the power to overrule its previous decision. [Wilden v. McAllister, 178 Mo. 732, 77 S.W. 730.]
But these cases do not cover the point here involved, for in this case the St. Louis Court of Appeals has rendered a decision which it deems to be in conflict with a previous decision of the Kansas City Court of Appeals, as it plainly is, and as neither of said courts of appeals has the power to make the other conform its decisions to the previous decisions of the other, the purpose of the constitutional provision quoted would be frustrated in the different jurisdictions of said courts of appeals, unless the cause can be certified to this court for final determination. The certification of such a case by a court of appeals, under such circumstances, is therefore clearly within the purpose and spirit of the Constitution, and jurisdiction thereof will be retained by this court.
The policy sued on is for five hundred dollars; is dated December 1, 1899, and is for a term of three years, and the loss is payable to the plaintiff. It describes the property insured as follows:
The petition follows the language of the policy in describing the property, and contains no other allegation of ownership of the property insured than that employed in the policy. The defendant demurred to the petition, alleging, inter alia , as ground therefor, that the petition "does not show that plaintiff was the owner of said property." The trial court overruled the demurrer, and the defendant saved an exception to the ruling. But the defendant did not stand on its demurrer. On the contrary, it filed an answer, which is a general denial. The case was then tried upon its merits by the court, a jury being waived. The plaintiff, without any objection by the defendant, introduced testimony tending to prove that he was the owner of the property at the date of the policy, and of the loss; that a part of it was destroyed by fire, without any fault or negligence on his part, and the refusal of the defendant to pay. At the close of the plaintiff's case, the defendant demurred to the evidence. The defendant offered no evidence whatever. The trial court entered judgment for the plaintiff. The defendant filed a motion for a new trial, alleging, as grounds therefor, that the court erred in the following respects: 1. In permitting the introduction of plaintiff's testimony in the cause. 2. In permitting plaintiff to introduce testimony tending to show damage. 3. In not sustaining defendant's demurrer to plaintiff's petition. 4. In not sustaining defendant's demurrer to plaintiff's testimony. 5. In granting judgment for damages and attorney's fees. No motion in arrest was filed, nor was there any objection, ore tenus, to the introduction of any evidence by the plaintiff in support of the petition. The only objection of the defendant during the trial to any evidence that was offered by the plaintiff, which was not sustained by the court, was to certain letters of the attorneys of the defendant to the plaintiff's attorney, in regard to proofs of loss, and such objections went only to the authority of the defendant's attorneys to waive proofs of loss, and an inspection of the record clearly shows that there was no error in the ruling of the trial court in that regard.
In the St. Louis Court of Appeals and in this court, counsel for defendant, while claiming generally that there are other errors in the record which are not specified or argued, rest their contention solely upon the ground that the petition is not sufficient to support the judgment, because, they say, there is no distinct and specific averment therein that the plaintiff was the owner of the property insured at the date of the issuance of the policy and of the loss.
The St Louis Court of Appeals treated the point as properly in the case, and held that the language employed in the policy and in the petition in speaking of the property as "his one and a half shingle roof, frame dwelling," "his household and kitchen...
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