Scofield v. American Mut. Ins. Co.
| Decision Date | 02 May 1932 |
| Docket Number | No. 17272.,17272. |
| Citation | 52 S.W.2d 205 |
| Parties | IRVIN SCOFIELD, RESPONDENT, v. AMERICAN MUTUAL INSURANCE COMPANY, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Adair County. — Hon. Paul D. Higbee, Judge.
AFFIRMED.
Philip J. Fowler for respondent.
Randolph & Randolph for appellant.
Plaintiff brought suit in two counts, the first of which is an action on a policy of fire insurance on an automobile, the second upon a cause of action for personal injury based on the alleged negligent operation of an automobile by defendant in which automobile plaintiff was riding as a passenger. Before the return day of the summons defendant filed a demurrer, one ground of which was that the petition improperly joined a cause of action ex contractu with one ex delicto. The second count of the petition was dismissed.
On May 21, 1931, the demurrer was overruled and thereupon defendant, as shown by the record proper, filed answer. The answer was a general denial and a plea that defendant did not execute the policy of insurance described in the petition; that defendant issued a certain policy of insurance upon an automobile which plaintiff represented as being a 1928 Oakland automobile; that plaintiff was not the owner of said automobile and that the contract on the part of the plaintiff was fraudulent, against public policy, a gaming contract and utterly void; that plaintiff represented said automobile was manufactured in the year 1928; that defendant, relying upon such representation, issued the policy; that said automobile, as plaintiff well knew, was of the "1927 year and model;" that the said representations were false and fraudulent and were made for the purpose of inducing the defendant to insure said automobile; that defendant did not know that said automobile was of the 1927 year and model and that if it had so known it would not have granted such insurance; that said representations were material to the risk and that old automobiles have a value lessened in proportion to their age and year and that the said automobile was not of an insurable value as a 1927 year automobile; that the fire, if any occurred, was not within the terms of the policy but was such a fire as was not covered by said policy; that plaintiff had not complied with the terms of the policy after the loss or damage, if any.
Plaintiff had a verdict and judgment for $540 damage and $50 attorney's fees for vexatious refusal to pay plaintiff's claim. Defendant has appealed.
Plaintiff's evidence tends to show that on October 10, 1930, as the result of negotiations with one Jack Maize, he purchased the automobile in question; that at that time the title of said automobile as shown by certificate of title was in Frank See; that at the time of the negotiations plaintiff received from said Maize an ordinary bill of sale in which the motor number and serial number of the automobile were stated; that on October 13, 1930, he presented the bill of sale to defendant's "licensed agent," E. Hitt Stewart, and made application for insurance on the automobile; that said agent personally inspected the automobile; that the certificate of title of the automobile had not been assigned to plaintiff at the time he applied for insurance; that defendant thereafter issued the policy sued upon; that the policy was not delivered to plaintiff until after the certificate of title from Frank See had been duly assigned and delivered to him, which assignment was dated November 25, 1930. The automobile, which was of the value of $800, was totally destroyed by fire on December 14, 1930; that defendant's adjuster, two days thereafter, investigated the claim, talked with plaintiff and refused to pay the loss. It was shown by certified copy of the record in the office of the Secretary of State that legal title to the automobile was assigned to plaintiff on November 25, 1930.
During the trial defendant obtained leave to amend its answer so as to allege that the original cost of the automobile had been falsely represented by the plaintiff and to include therein tender of the premium to plaintiff. The amendment was considered made and tender of the premium was made to plaintiff's counsel. The tender was refused.
On defendant's behalf its president testified that the application for insurance was received at the home office of defendant on October 14, 1930; that the policy was issued on the same day and forwarded to its agent E. Hitt Stewart, at Kirksville, Missouri; that defendant would not have issued the policy had it known that the automobile was built in 1927; that the automobile did not have insurable value. The agent, to whom application for insurance was made, testified that he forwarded the application on the day it was made; that the policy of insurance was promptly returned to him and that within a week thereafter he delivered it to plaintiff. It was shown that the certificate of title, which was assigned to plaintiff on November 25, 1930, was not filed in the office of the Secretary of State until after the automobile was destroyed. During the time defendant's president was testifying defendant asked leave to amend its answer by alleging therein that defendant "is a mutual automobile insurance company." The request was denied.
The assignment of error referred to in the argument in appellant's brief are: (1) That defendant "was arbitrarily prevented an opportunity to file answer and get its...
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...v. Home Mut. Ins. Ass'n of Iowa, supra, 222 N.W. loc. cit. 369(2).7 52 Am.Jur., Tender, Sec. 37, p. 242; Scofield v. American Mut. Ins. Co., 227 Mo.App. 166, 52 S.W.2d 205, 207(6); Knight v. Firemen's Ins. Co. of Newark, N. J., 227 Mo.App. 426, 49 S.W.2d 682, 687(11). See also Summers v. Pe......
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