Schaefer v. Home Ins. Co.

• Citation: 194 S.W.2d 718,239 Mo.App. 586
• Parties: G. W. Schaefer, v. The Home Insurance Company
• Decision Date: 01 April 1946
• Court: Kansas Court of Appeals

194 S.W.2d 718

239 Mo.App. 586

G. W. Schaefer, v. The Home Insurance Company

Court of Appeals of Missouri, Kansas City

April 1, 1946

Appeal from Jackson County Circuit Court; Hon. John R. James, Judge.

Reversed.

John T. Harding, David A. Murphy, R. Carter Tucker, John Murphy Robert L. Spurrier, Harding, Murphy & Tucker for appellant.

The court erred in overruling defendant's motions for a directed verdict filed and presented at the close of the plaintiff's evidence and its motion for directed verdict filed and presented at the close of all of the evidence. Bridgewater v. General Exchange Ins. Corp., 234 Mo.App. 335, 131 S.W.2d 220, 224, 225; Henjes v. Aetna Ins. Co., 132 F.2d 715, 718, 719, 720, cert denied 319 U.S. 760, 63 S.Ct. 1316; Meyer Dairy Equipment Co. v Connecticut Fire Insurance Company, (Mo. App.) 287 S.W. 663, 665; Robinson v. Home Insurance Company, 73 F.2d 3, 4, 5 (C. C. A. 5th Circuit); Perkins v. Becker, 236 Mo.App. 786, 157 S.W.2d 550, 553; Birrell v. Dryer, (House of Lords) Vol. IX, Appeal Cases, 345, 350, 351, 353, 355; Hastorf v. Greenwich Ins. Co., 132 F. 122, 123, 124, 125; Canton Ins. Office, Ltd., v. Independent Transp. Co., 217 F. 213 (C. C. A. 9th Circuit); Gaty v. Phoenix Ins. Co., 30 Mo. 56; Tennessee Marine and Fire Ins. Co. v. Scott and Mudge, 14 Mo. 46; Roe and Kercheval v. Columbus Ins. Co., 17 Mo. 301; Snyder v. Home Ins. Co., 133 F. 848; Zancker v. Northern Insurance Co. of New York, (Mo. App.) 176 S.W.2d 523, 526; State ex rel. Prudential Insurance Co. of America v. Shain, 344 Mo. 623, 127 S.W.2d 675, 676, 677; 44 C. J. S., Sec. 290, pp. 1139, 1140, 1142, 1144 and 1145.

Carl H. Willbrand, E. A. Taylor, for respondent.

Since the language of the policy renders said policy void in the event of the breach of the so-called "lay-up warranty," and since the appellant, relying upon an alleged breach of that warranty as a defense in this cause, pleaded same and tried this cause in the lower court upon this theory, appellant cannot now abandon its theory of forfeiture and seek to raise the issue of suspension only here for the first time in this Court on appeal. Goldman v. Indemnity Insurance Company of America, 72 S.W.2d 868; "It is our settled law in this state that parties are restricted on appeal to the theory on which they try the case below." Snyder v. American Car & Foundry Company, 322 Mo. 147, 14 S.W.2d 603; Harper v. Morse, 114 Mo. 317, l. c. 322, 21 S.W. 517; Cox v. Owensville Mutual Benefit Aid Association, 185 S.W.2d 28, l. c. 30; Kelley v. United Mutual Insurance Association, (Mo. App.) 112 S.W.2d 929; loc. cit. 932; McGraw et al. v. Farmers Fire & Lightning Mutual Insurance Co., 236 Mo.App. 1019, 160 S.W.2d 845, loc. cit. 847; Toroian v. Parkview Amusement Co. et al., 331 Mo. 700, 56 S.W.2d 134, loc. cit. 135; State ex rel. Northwestern National Insurance Co. v. Trimble et al., 323 Mo. 458, 20 S.W.2d 46; Pauley v. Business Men's Assurance Co. of America, 217 Mo.App. 302, 261 S.W. 340, 342; Luthy v. Northwestern National Insurance Co., 224 Mo.App. 371, 20 S.W.2d 299; Kansas City Life Insurance Company v. Wells, 133 F.2d 224; Respondent admitted that the boat in question was not laid up and out of commission on shore in permanent winter quarters from noon of November 1st to noon of April 15, but denied that this constituted a breach of any warranty contained in the policy of insurance, and asserted that any such warranty, if any, was in no event a material warranty. Section 5935 Revised Statutes of Missouri, 1939, Section 5936 Revised Statutes of Missouri, 1939.

Boyer, C. Sperry, C., concurs.

OPINION

BOYER

Respondent, plaintiff below, sought recovery under a marine insurance policy issued by the appellant, hereafter referred to as defendant. The petition states the corporate existence of defendant and that it was engaged in the business of writing property insurance in the State of Missouri; that the defendant did on the 15th day of June, 1943, for a consideration, issue and deliver to plaintiff its policy of insurance in the sum of $ 600 on plaintiff's Century Runabout boat as described in the policy. The policy is referred to and set out in full in the petition. Plaintiff further states that his said boat so insured by the defendant "was lost some time during the first week in November, 1943, the exact time and nature of said loss being unknown to plaintiff, but that plaintiff last saw said boat at Lake Lotawana in Jackson County, Missouri, on or about the 4th day of November, 1943, at which time and place, plaintiff left said boat tied up at the dock with instructions to have said boat put up for the winter; that when plaintiff thereafter and on or about the 6th day of November, 1943, returned to Lake Lotawana to see if said boat had been put up in accordance with his instructions said boat had disappeared, and was missing and could not be found." It was further stated that plaintiff reported the loss of the boat to the office of the sheriff of Jackson County and to the agent of the defendant, and thereafter delivered to said agent proof of loss in the form and manner prescribed and approved by said agent; that plaintiff demanded payment of his claim under the policy in the sum of $ 600 for the total loss of his boat; that the demand for payment was refused, and that repeated demands met a like refusal. The petition further alleged vexatious refusal to pay on the part of the Company, and demanded payment for the face of the policy with interest, and for damages and attorneys' fees.

The answer of defendant admits its corporate capacity and that it is engaged in the business of writing property insurance in Missouri and elsewhere; and admits that on the 15th day of June, 1943, it issued the policy of marine insurance described and set out in plaintiff's petition, but denies each and every other allegation in the petition contained. For further answer defendant stated that it insured plaintiff from noon of the 15th day of June, 1943, until noon of the 15th day of June 1944; that according to the terms of the policy the boat was insured "In Port and at Sea, in docks and graving docks, and on ways, gridirons and pontoons, at all times and in all places and on all occasions" not conflicting with other clauses of the policy; that the policy further provided that plaintiff warranted that the yacht would be laid up and out of commission on shore in permanent winter quarters from noon of November 1st to noon of April 15th, said provision being as follows: "Warranted by the insured that the within named yacht shall be laid up and out of commission on shore in permanent winter quarters from noon of November 1st to noon of April 15th"; that plaintiff breached said warranty in that said boat was not laid up out of commission on shore and in permanent winter quarters from November 1, 1943, to April 15, 1944, but was never laid up out of commission on shore in permanent winter quarters, and that by virtue of said breach of said warranty, defendant was not liable to plaintiff under said policy. The answer also further stated that the loss of the boat in question was due either to the negligence or the intentional act of the plaintiff in that he left the boat in the water with the automatic bailer in the bottom of the boat detached, which caused the boat to fill with water and sink.

The amended reply of the plaintiff states that he admits the corporate existence of defendant and the issuance of the policy of insurance in said answer mentioned, but denies each and every other allegation. Plaintiff further denies the making of any warranty in said policy of insurance or the existence of any warranty constituting a defense to plaintiff's action; denies that the loss was caused by plaintiff's negligence or by any act of plaintiff; and plaintiff further states that if there was a violation of any warranty, which he denies, any such warranty was in no event a material warranty, and that the defendant by its acts and conduct waived any such warranty and condition in said policy by failing to return or offer to return the premium paid by plaintiff to defendant for said policy.

The case was tried before the court and a jury. At the close of plaintiff's case and at the close of all the evidence the defendant moved the court for a directed verdict in its favor on the grounds that the petition did not state facts sufficient to constitute any claim against the defendant and that under all the evidence plaintiff failed to prove facts sufficient to constitute a claim against defendant. Such motions were overruled. The case was submitted to the jury upon instructions, and a verdict signed by ten jurors was for plaintiff authorizing recovery in the sum of $ 600 and interest.

Judgment followed accordingly, and defendant duly filed a motion to set aside the verdict and the judgment and for judgment in accordance with its motion for a directed verdict, and in the alternative for a new trial. Such motion was overruled and defendant has duly perfected its appeal from said judgment, and as ground for reversal presents these points: (a) Plaintiff's petition failed to state facts sufficient to constitute a claim against the defendant. (b) All the evidence disclosed that plaintiff failed to establish or prove facts sufficient to constitute a claim against defendant.

A copy of the policy was offered in evidence by the plaintiff. It contains provisions as alleged in defendant's answer and shows that plaintiff's 1939, 16' century Runabout called a yacht, was insured in the sum of $ 600, from noon of the 15th day of June, 1943, until noon of the 15th day of June, 1944, "In Port and at Sea, in docks and graving docks, . . . at all times and in all places and on all occasions not conflicting with warranties...