State ex rel. Miller's Mut. Fire Ins. Ass'n v. Caruthers, 41683

• Decision Date: 13 February 1950
• Docket Number: No. 41683,41683
• Citation: 226 S.W.2d 711,360 Mo. 8
• Parties: STATE ex rel. MILLER'S MUT. FIRE INS. ASS'N v. CARUTHERS et al.
• Court: Missouri Supreme Court

Page 711

226 S.W.2d 711

360 Mo. 8

STATE ex rel. MILLER'S MUT. FIRE INS. ASS'N v. CARUTHERS et al.

No. 41683.

Supreme Court of Missouri, en Banc.

Feb. 13, 1950.

Sievers & Reagan, St. Louis, Oliver & Oliver, Cape Girardeau, for relator.

Frank Lowry, Cape Girardeau, for respondents.

HYDE, Chief Justice.

This is an original proceeding in prohibition seeking to prevent enforcement of an order by Judge Caruthers requiring relator to answer the following interrogatories:

First Interrogatory: What is the name and address for the purpose of service of a subpoena of each person employed by your corporation as an adjuster and who participated in the inspection, adjustment or inspection of the property of the above named plaintiff following the fire occurring on February 16, 1949 whereby her property located at 127 North Main Street, Cape Girardeau, Missouri, was damaged?

Fifth Interrogatory: Were any agent, adjuster, investigator or other person directed by the above defendant or by its agents, servants or employees to make inquiry regarding the above named plaintiff in Williamson County, Illinois, and if so, for what purpose and what instructions were extended such persons regarding such investigation or inquiry and what persons were interrogated by such person or persons?

Sixth Interrogatory: What are the names and addresses of all persons interviewed by any and all investigators, appraisers, adjusters, agents or servants employed by the above named defendant to investigate, appraise, adjust or inquire into the fire occurring on February 16, 1949 whereby property owned by the above named plaintiff was damaged at 127 North Main Street, Cape Girardeau, Missouri?

These interrogatories were asked in an action by Mrs. Christina Mercer against relator on a fire insurance policy for the amount of fire loss claimed, seeking penalties for vexatious delay, including attorney's fee; and also containing a third count seeking both actual and punitive damages for activities of relator's agents which respondent alleged slandered her in her business and personal reputation. We see nothing wrong with the First Interrogatory. Relator admits that in State ex rel. Iron Fireman Corporation v. Ward, 351 Mo. 761, 172 S.W.2d 920, we required production of records to show names of persons making sales, repairs and inspections of the furnace involved in that case. The adjusters, who participated in the investigation, adjustment or inspection of plaintiff's property following the fire, would certainly be competent witnesses as to the amount of the loss which was one of the important issues in the case. They may have also observed conditions on the premises tending to show the origin of the fire. Plaintiff had the right to take the depositions of these adjusters to find out what their testimony would be. We, therefore hold that the Court properly required relator to answer the First Interrogatory.

However, we do not think that the Fifth and Sixth Interrogatories were proper. Relator's answer stated as a defense that the fire was wilfully set, or caused to be set by plaintiff for the purpose of defrauding it as the insurer. Relator, of course, had the right to make any reasonable investigation in support of this defense. The allegations of the petition in regard to an investigation in Williamson County, Illinois, are as follows: '10. For other and further cause of action against this defendant plaintiff states that following said fire and damages as above alleged, agents, servants, adjusters and investigators of defendant in addition to the wrongful conduct above described, did go to ...