Shelton v. Great American Ins. Co. of New York

• Decision Date: 11 January 1937
• Docket Number: No. 18498.,18498.
• Citation: 100 S.W.2d 591
• Parties: SHELTON v. GREAT AMERICAN INS. CO. OF NEW YORK.
• Court: Missouri Court of Appeals

100 S.W.2d 591

SHELTON v. GREAT AMERICAN INS. CO. OF NEW YORK.

No. 18498.

Kansas City Court of Appeals. Missouri.

January 11, 1937.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

"Not to be published in State Reports."

Action by Tressie Shelton against the Great American Insurance Company of New York, wherein Mildred S. Young intervened. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Hook & Thomas, Inghram D. Hook, and Harry L. Thomas, all of Kansas City, for appellant.

I. M. Lux, of Kansas City, for respondent.

CAMPBELL, Commissioner.

The plaintiff brought this suit upon a policy of fire insurance issued by the defendant to Bethalda A. Ogle in the amount of $3,500 covering a dwelling house located in St. Joseph, Mo., for a term of three years. Trial of the cause resulted in a verdict and judgment in favor of the plaintiff in the sum of $1,308.83. The defendant has appealed.

Plaintiff, on August 22, 1932, bought the property and the policy was assigned to her. The building was damaged by three separate fires; the first on November 23, 1933, the second on November 25, 1933, and the third on November 26, 1933. These fires were of incendiary origin. The defendant, however, does not claim that the plaintiff intentionally caused or procured any of the fires.

Mildred S. Young, who owned a debt secured by a deed of trust upon the property, intervened. Her claim was based upon a mortgage clause in the policy. There was no defense to her claim. The court directed the jury to return a verdict in the sum of $1,026.79 in her favor. The verdict was returned and judgment entered thereon.

The plaintiff testified that after the last fire she caused a contractor to make an estimate for the repairing of the place resulting in an estimate being furnished her by him for that purpose of $1,784.51; that on November 29, 1933, plaintiff presented to the defendant's adjuster the estimate referred to "and told him I wanted the house put back in the condition it was in or that amount," to which the adjuster replied that the company "couldn't think of doing such a thing"; that on the same day the plaintiff signed and delivered to the adjuster a written statement in which it was stated that plaintiff lived in the premises until about November 1, 1933, at which time she leased them to one Hyatt; that from April, 1933, to about November 1, 1933, she used the building as a place in which to sell draft beer to the public; that on January 2, 1934, plaintiff refused to make proof that the loss was $700, although the adjuster requested her to do so; that on January 6, 1934, plaintiff signed, verified, and delivered to defendant a proof of loss in which she stated that the loss was $3,500. Plaintiff's counsel on March 12, 1934, wrote to the defendant stating that unless the loss was adjusted suit would be brought, and "if you desire any additional information, in regard to the above loss, you will please hereafter communicate with my office. * * *" The defendant did not reply to the letter.

The answer pleaded that from April, 1933, the plaintiff operated a beer parlor and dance hall in the insured building until about the first day of October, 1933; and that about the date above mentioned the plaintiff abandoned the premises and rented them to one Hyatt, who thereafter, with the knowledge of the plaintiff, continued to operate the beer parlor and dance hall until the time of the fires; that the policy provided that insurance was forfeited "`If the insured concealed or misrepresented, in writing, or otherwise, any material fact or circumstance concerning this insurance or the subject thereof,' or, `in case of any fraud or false swearing, by the insured, touching any matter related to this insurance or the subject thereof, either before or after the loss,'" or if the hazard was increased. The policy contained the pleaded forfeiture clauses. The plaintiff further testified that she operated the dance hall, sold 3.2 per cent. beer (a beverage which, by legislative fiat, is nonintoxicating); that the beer parlor and dance hall were discontinued when she leased the premises to Hyatt, which was on November 1, 1933. However, there was evidence on defendant's behalf to the effect that the beer parlor was in operation at the time of the first fire.

The facts show that the amount of the premium provided for in the policy was $1.13 per year for each $100 of insurance; that in September, 1932, a building adjoining the premises was torn down which reduced the hazard, and the rate was reduced to $.893, the rate when the building was used as a residence. The evidence further shows that the rate established by the Missouri Inspection Bureau, which rate was approved by the Insurance Department and which was the rate used by the defendant, was $.893 per hundred per annum on the building in question when used as a residence; that when the building was used for a place where 3.2 per cent. beer was sold, "also as a place where there is music and dancing and slot machines," the rate was $1.65 per hundred. (Italics mine.)

Plaintiff's instruction No. 3, which the defendant says is erroneous, follows: "You are instructed that even though you may find and believe from the evidence that plaintiff operated a beer parlor on a porch attached to the house described in evidence, or in other parts of said house, and that the operation of such beer parlor increased the fire hazard on the house, yet you are further instructed that such fact, if it be a fact, does not entitle...