Spencer v. Farmers' Mut. Ins. Co. of Sullivan County, Mo.

• Decision Date: 13 October 1933
• Docket Number: 17904
• Citation: 65 S.W.2d 665
• Parties: J. M. SPENCER, JR., Respondent, v. THE FARMERS MUTUAL INSURANCE COMPANY, OF SULLIVAN COUNTY, MISSOURI, a corporation, Appellant
• Court: Kansas Court of Appeals

65 S.W.2d 665

J. M. SPENCER, JR., Respondent, v. THE FARMERS MUTUAL INSURANCE COMPANY, OF SULLIVAN COUNTY, MISSOURI, a corporation, Appellant

No. 17904

Court of Appeals of Missouri, Kansas City

October 13, 1933

Affirmed.

M. D Campbell, Commissioner. Reynolds, C., concurs. All concur.

OPINION

M. D Campbell

Appeal from Sullivan Circuit Court

The defendant, Farmers Mutual Insurance Company, organized under the law of Missouri, on January 29, 1929, issued a contract of insurance to plaintiff by the terms of which insurance against loss by fire was granted upon a dwelling house, the property of plaintiff and situated in Sullivan county, in the sum of $ 900. The dwelling was totally destroyed by fire on April 30, 1930. Thereafter, plaintiff accepted the sum of $ 450 and gave a receipt in satisfaction of his claim under the policy. Afterwards plaintiff brought this action to recover the sum of $ 450, the balance alleged to be due on account of the loss. A trial to the court, without jury, resulted in judgment for the plaintiff as prayed. The defendant appeals.

The cause was tried upon an agreed statement of facts. The pertinent parts of which are: That on January 29, 1929 defendant issued its policy of fire insurance covering plaintiff's dwelling house in the sum of $ 900; that the dwelling house, which was totally destroyed by fire on April 30, 1930, was of the reasonable value of $ 1200; that the policy was in full force and effect at the time of loss; that said dwelling had been vacant and unoccupied for a period of "at least 15 days prior to April 30, 1930"; that defendant's director, Blackman, in a few days after the fire, told plaintiff that inasmuch as the dwelling was vacant he was entitled to the sum of $ 450; that said director filled out proof of loss for that sum, which proof the plaintiff signed and thereafter accepted the sum of $ 450 in full payment of the loss.

For the defendant it is argued that plaintiff's acceptance of the sum of $ 450 was an accord and satisfaction of his claim and that for that reason alone he is precluded from recovering in this action.

In making the adjustment as well as at the trial plaintiff and defendant agreed that the loss was the sum of $ 1200 and that the amount of the insurance was $ 900. It follows that upon the admitted facts and under the terms of the policy plaintiff's claim was liquidated. He was entitled to receive the sum of $ 900 as he claims or one-half thereof as the defendant claims.

The rule governing the question here involved is that if the facts are undisputed and the contract "if interpreted by its terms and under our law, is one calling for the payment" of $ 900, the defendant may not discharge its obligation by paying a less sum.

In the case of Dodt v. Prudential Ins. Co. of America, 186 Mo.App. 168, 171 S.W. 655, the defendant therein issued its policy of insurance by the terms of which it promised to pay plaintiff in event of the death of the insured six months after the date of the policy the sum of $ 153, and if the insured died within 6 months after the policy was executed one-half thereof, to-wit, $ 76.50. The insured died within 6 months after the policy was delivered. After the insured died the insurance company's adjuster called on plaintiff and induced her to accept the sum of $ 3.90, which was the amount of the premium and interest thereon, in full settlement of her claim. The policy contained a provision that in event the insured was not in good health at the time it was delivered the liability of defendant was limited to a return of the premium. The defendant claimed but failed to prove that the insured was not in good health at the time the insurance became effective. Upon considering the facts the court said:

"The effect of the payment of $ 3.90 depends upon the question as to whether this policy, as interpreted by its terms and under our law, is one calling for the payment of one-half the face of the policy, as claimed, to-wit, the sum of $ 76.50, or merely for the return of the premium paid and interest, which, it appears amounted to $ 3.90. ****** If in point of fact it was not true that under the contract $ 3.90 only was due upon it and that the full face of the policy was due, then it is the well settled law of this state that the payment or tender under the policy of a sum less than the full amount of the sum due, does not deprive the beneficiary of a right to prosecute a suit for

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