Shaffner v. Farmers Mut. Fire Ins. Co. of St. Clair County, 18415

Citation859 S.W.2d 902
Decision Date02 August 1993
Docket NumberNo. 18415,18415
PartiesDelbert SHAFFNER and Eula Shaffner, Plaintiffs-Respondents, v. FARMERS MUTUAL FIRE INSURANCE COMPANY OF ST. CLAIR COUNTY, Defendant-Appellant.
CourtCourt of Appeal of Missouri (US)

J.D. Baker, Baker & Dull, Osceola, for defendant-appellant.

James C. Johns, Cason, Edgett, Johns & Mahan, Clinton, for plaintiffs-respondents.

FLANIGAN, Judge.

In the early morning of April 21, 1991, a dwelling house owned by plaintiffs Delbert Shaffner and Eula Shaffner was destroyed by fire. On that date, plaintiffs were the insureds under a fire insurance policy issued by defendant. In this action to collect the policy proceeds, the jury returned a verdict in favor of plaintiffs. The trial court entered judgment on the verdict in the sum of $20,234.40, together with pre-judgment interest. Defendant appeals.

Among the "Standard Provisions" of the policy was the following: "[T]his Company shall not be liable for loss occurring ... (b) while a described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of sixty consecutive days." The house was "a described building."

Both sides presented evidence. At the close of all the evidence defendant filed a motion for directed verdict on the following ground: "The evidence shows that the dwelling house which is the subject of this action was vacant or unoccupied beyond a period of sixty consecutive days prior to the fire loss and as a matter of law, defendant is entitled to judgment." The motion was denied. Following entry of judgment, defendant filed a motion for new trial and a motion for judgment notwithstanding the verdict. The motions were overruled and this appeal ensued.

Defendant contends that the trial court erred (a) in denying its motion for directed verdict, (b) in refusing to give two instructions, Instruction A and Instruction B, which were offered by defendant, and (c) in giving Instruction 6.

Defendant contends that the trial court erred in denying its motion for directed verdict because, as a matter of law, the uncontroverted evidence showed that the house was vacant or unoccupied for a period of more than 60 days prior to the fire. The parties agree that the policy provision upon which defendant relies constitutes an affirmative defense on which defendant had the burden of proof.

In reviewing the trial court's ruling on defendant's motion for a directed verdict this court must view the evidence in the light most favorable to the plaintiffs, and they are to be given the benefit of all reasonable inferences. Black v. Kansas City Southern Ry. Co., 436 S.W.2d 19, 23 (Mo. banc 1968). "A [trial] court should never withdraw a question from the jury, unless 'all reasonable men, in the honest exercise of a fair, impartial judgment, would draw the same conclusion from the facts which condition the issue.' ... Where there is uncertainty arising 'from a conflict in the testimony or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them, the question is not one of law but of fact to be settled by the jury.' " Walton v. United States Steel Corporation, 362 S.W.2d 617, 621 (Mo.1962).

Ordinarily, a court is not justified in directing a verdict in favor of the party having the burden of proof when the evidence relied on consists of oral testimony. Price v. Bangert Brothers Road Builders, Inc., 490 S.W.2d 53, 57 (Mo.1973); Strang v. Deere, & Co., 796 S.W.2d 908, 913 (Mo.App.1990). Generally, a directed verdict will not be granted to the party carrying the burden of proof. However, an exception to this general rule is recognized when plaintiff's evidence establishes that recovery is barred by an affirmative defense. Jerry Anderson & Assoc., Inc. v. Gaylan Ind., Inc., 805 S.W.2d 733, 735 (Mo.App.1991).

Plaintiffs presented the testimony of plaintiff Delbert Shaffner, Donnie Murray, Rhonda Weaver, and Charles Sheldon. Defendant's evidence consisted of admissions of Delbert Shaffner contained in his deposition. Defendant's brief says: "At trial, the sole issue was whether the residential dwelling had been vacant or unoccupied for more than 60 days prior to the fire." With respect to that issue, there was no factual dispute.

In 1971, plaintiffs acquired title to the house and the 200 acres on which it was situated. Except for the house and its immediate yard area, most of the farm was rented by Shaffner to Donnie Murray as cattle pasture. Plaintiffs never lived in the house and used it as a rental house.

The last tenants to live in the house were the Blevins family, who lived there two years and moved out in November 1990. The Blevinses were the last people to stay overnight in the house, and that occurred on November 3, 1990. In November 1990, the electricity to the house was turned off and was still turned off on the date of the fire. Water to the house was provided by a well and pump which operated on electricity, and the house was without water after November 20, 1990. After the Blevinses moved out, Shaffner drained all the water from the pipes.

Shaffner testified that on March 31, 1991, he rented the house to Raymond and Rhonda Weaver. He discussed with the Weavers the fact that the house needed some clean-up and repairs. It was agreed that Shaffner would furnish the wallpaper and material and the Weavers would help Shaffner do the work.

On April 2, the "clean-up and fix-up" began. Between April 2 and April 21, Shaffner and Mr. and Mrs. Weaver were present at the house almost daily, cleaning up, redecorating, and making repairs. That work included stripping wallpaper, repapering the kitchen, washing windows, and working on the chimney. On April 18, most of the work was completed and Shaffner gave the Weavers a key to the house. The Weavers were going to have the electricity turned on during the week of April 21, and they were to start paying rent to Shaffner on May 1. On occasion during the clean-up work, the Weavers and Shaffner ate meals at the house.

Prior to the fire, the Weavers had not moved any of their furniture or appliances into the house, but had moved cleaning supplies. The contents which remained in the house after the Blevinses moved out included a Warm Morning stove, an antique incubator, and a chair. At the time of the fire, contents of the house included the Warm Morning stove, the antique incubator, a kitchenette table, a dinette chair, a lawn chair, a step ladder, and tools used in connection with cleaning and repapering. Shaffner testified that he did not provide his different tenants furniture or appliances other than the Warm Morning stove. On April 23, Shaffner told defendant's agent Sheldon that no one was living in the house "because we weren't staying there overnight."

Donnie Murray testified that during February, March, and April 1991, he was on the acreage surrounding the house every day and sometimes twice a day. Murray said, "I kept an eye on the house, we always watched for the door open.... If I saw anything out of the ordinary I would notify Shaffner."

Rhonda Weaver testified that she and her husband did not pay any rent for the month of April, but that the cleaning and wallpapering which they did "was to be taken off the rent." She said at the date of the fire she had a key to the house but that she and her husband were spending the night at another location which they rented until May 1 and where they had most of their belongings. She said, "We had the right to move in the house as of the first of April, as soon as we got it the way we wanted it, nice and clean and liveable.... We were going to move all our belongings in and start spending the nights in the house after we had the electricity turned on. It was to be turned on on the 23rd.... We had not moved any furniture in the house except for cleaning supplies and something to have a snack, and a crate to stand on and an old table to put the plywood on to do the papering with. The old table probably would have been moved out.... We had not moved any of our clothes in yet."

Charles Sheldon, defendant's agent who sold the policy to plaintiffs, testified: "It is customary in the use of rental property that after one tenant moves out, the owner will need to go back in the premises and do some clean-up or redecorating. They had 60 days to do it."

Defendant argues that for a period of more than 60 days preceding the fire, the house, as a matter of law, was "vacant" or "unoccupied." In support of its argument, defendant relies upon the definition of the word "vacant" set forth in Alcock v. Farmers Mut. Fire Ins. Co., 591 S.W.2d 126 (Mo.App.1979), which involved a policy exclusion containing the same language as the "Standard Provision" in the instant policy. In Alcock the court said, at 128:

The term "vacant" means empty, without inanimate objects, deprived of contents. A thing is vacant when there is nothing in it. "Vacant" means abandoned and not used for any purpose. Limbaugh v. Columbia Insurance Company of New York, 368 S.W.2d 921 (Mo.App.1963); Bledsoe v. Farm Bureau Mutual Insurance Company, 341 S.W.2d 626 (Mo.App.1960); Drummond v. Hartford Fire Insurance Company, [343 S.W.2d 84 (Mo.App.1960) ].

Immediately following the foregoing language, the court said in Alcock:

The term "occupancy" refers to human habitation. A building is unoccupied when it is no longer a place of abode. Florea v. Iowa State Insurance Company, 225 Mo.App. 49, 32 S.W.2d 111 (1930). Occupancy refers to use of property as a customary and usual place of habitation to which return is contemplated after temporary absence. Bledsoe v. Farm Bureau Mutual Insurance Company, supra. 1

Defendant does not quote or rely on the foregoing definition of the term "unoccupancy." Instead, defendant quotes the following language from Cook v. The...

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