The State ex rel. Security Insurance Company v. Trimble

• Decision Date: 10 October 1927
• Docket Number: 27068
• Citation: 300 S.W. 812,318 Mo. 173
• Parties: The State ex rel. Security Insurance Company v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

300 S.W. 812

318 Mo. 173

The State ex rel. Security Insurance Company v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals

No. 27068

Supreme Court of Missouri

October 10, 1927

Motion for Rehearing Overruled. December 12, 1927.

Record quashed.

John S. Boyer and Crow & Newman for relator.

The court instructed the jury as shown by instruction given on behalf of plaintiff marked "E" and gave at the request of plaintiff's Instruction D, and in both peremptorily instructed the jury to find for the plaintiff if the jury believed the facts stated in the respective instructions. In Instruction E, the court tells the jury that if it finds that after the issuance of the policy, theft occurred and proof of loss was made, the verdict must be for the plaintiff with interest; Instruction D peremptorily instructs the jury to find for plaintiff whether or not it believes that the defendant notified plaintiff that his car was at Junction City, and to recover same and that the defendant thereafter recovered the car and tendered it to plaintiff. If Instruction D is not an unqualified peremptory instruction to find for plaintiff without regard to the existence of facts therein stated or the facts stated in other instructions in the case, then Instruction D and Instruction E are wholly irreconcilable. State ex rel. v Ellison, 272 Mo. 583. This opinion has become the leading case upon this question by reason of having been approved many times, and therefore we will not encumber the record by citing other cases. The circuit court was without power to peremptorily instruct the jury to find for the plaintiff in a case where there was a dispute about the facts. State ex rel. v. Ellison, 286 Mo. 225.

Harris L. Jacobs, Frank Benanti and Julius C. Shapiro for respondents.

(1) The opinion of the Court of Appeals in ruling upon the instruction in question, follows the decisions of this court is fully supported by the authorities and consistent with the cases cited by relator. (a) The following authorities where assignments similar to those now asserted have been specifically ruled upon by this court, fully sustain respondent's opinion. First Natl. Bank v. Hatch, 98 Mo. 376; McGrew v. Mo. Pac. Ry. Co., 109 Mo. 582; Honea v. Railroad Co., 245 Mo. 644; State ex rel. Ins. Co. v. Cox, 270 S.W. 114. Plaintiff's main instruction includes all the essential elements necessary to allow a recovery for plaintiff. It, alone, purports to cover the entire case. Reference therein is made to all of the other instructions given, and the direction of the court indicated that all of the instructions should be read together as a whole. As a whole these fairly presented the law of the case to the jury, and when so considered, as required by the rule of law, "instructions must be read together, and appellate courts must proceed on the theory that they were so read by the jury" (Patterson v Evans, 254 Mo. 304), relator is furnished no just ground for complaint. (b) The isolation of Instruction D, and the attempted predication of error thereupon, as being contrary to the decisions of this court, is improper. It is quite apparent that this instruction does not purport to cover the entire case, but as said by each of the judges of the Court of Appeals in their separate opinions, it is merely made up and confined to certain issues in the case, and must be read in conjunction with the other instructions covering the case in the main. Unquestionably, as a matter of substantive law a tender of assured's stolen car upon the conditions as there indicated, is no defense to plaintiff's right to recovery, and could not prejudice relator; (for as said by the court it seems that the facts therein stated were undisputed). (c) The defendant having retained the premium paid for said insurance policy, while contending the policy was void ab initio by reason of alleged misrepresentations, as a matter of law was estopped to deny the validity of the policy, and its liability thereon. State ex rel. v. Ellison, 272 Mo. 571. (d) From a fair examination it is apparent that the paragraphs relied upon are peculiarly and only applicable to the language used by the Court of Appeals, which alone is criticised. Moreover the language of this court, must be viewed in the light of the opinion of the Court of Appeals then passed upon. (2) Respondents' conclusions and opinion in the premises were proper. A jury could not have been misled by the instruction complained of where the plaintiff's case and defendants' defenses were, as is apparent, by reading of the instructions mentioned in the opinion, clearly presented. As reasoning individuals, they understood the various issues in the case to be covered by the various instructions, and that they were to be considered by them as a whole in the deliberation of their verdict. They understood plaintiff, in accordance with the terms of the policy in question, claimed damages for the theft of his automobile. They also understood, of course, that the defenses -- issues to be decided by them -- were a denial of the theft, alleged breach of the warranties in the policy, and the attempted tender and the return of the automobile more than sixty days after the proof of loss. It is clear that they knew likewise that plaintiff could not recover unless they found there had been a theft and no violation of the terms of the policy. The respondents rightfully ruled the instruction in question only meant, "that their finding must be for the plaintiff as to the matters and things mentioned in that instruction," the issues there presented. The instruction was not misleading or prejudicial and so the respondents decided.

Davis, C. Higbee and Henwood, CC., concur.

OPINION

DAVIS

Certiorari on behalf of Security Insurance Company, Relator, to review the judgment of the Kansas City Court of Appeals relative to their opinions, original and on rehearing, in the case entitled Leonard Benanti v. Security Insurance Company of New Haven, Connecticut. Relator avers the opinions conflict with the last previous rulings of this court on the subject, warranting their quashal.

The history of the case develops that the Court of Appeals, on May 25, 1925, handed down an opinion affirming the judgment of the trial court, later sustaining a motion for rehearing. Subsequently, on February 1, 1926, the court again affirmed the trial court's judgment, adopting its former opinion and adding a supplemental opinion. Later a motion for a rehearing was overruled.

Relator then applied to this court for a writ of certiorari which was granted. Upon a hearing, this court determined that the opinions of the Kansas City Court of Appeals were in conflict with the last previous rulings of this court on the subject and quashed their record. Upon a motion for rehearing filed and sustained, the case was again submitted for our consideration.

The petition seeks to recover on a theft insurance policy, dated October 26, 1920, for the loss of plaintiff's automobile which the policy covered to the extent of $ 2400. The petition comprises two counts, the first of which prays reformation for the mutual mistake of issuing the policy to Antonio Benanti instead of Leonard Benanti. The second count asks that the defendant be made to pay the loss for the theft as the policy provides.

The opinions of the Court of Appeals develop the facts that relator issued a theft insurance policy to plaintiff (under the name of Antonio Benanti, which the court reformed to read Leonard Benanti, and with respect to which no contention is made in this court), covering his automobile in the sum of $ 2400. On March 14, 1921, the insured car was stolen. The opinions state that one Medes, who solicited the policy of plaintiff, was defendant's agent; that plaintiff made no representation to the company, the policy being constructed upon information which Medes personally procured and furnished defendant -- relator; that relator failed to tender the return of the premiums collected on the policy until in the midst of the trial, nearly three years after the denial of liability. Relative to Instruction D, which we later quote, the court say: "It seems that the facts stated in the instruction are undisputed, the only complaint made against it being that it directs a verdict while totally ignoring the other issues in the case." A pertinent portion of the opinion on rehearing reads:

"It was pointed out that the policy was introduced in evidence showing insurance in the amount of $ 2400; that the car was a 1919 model, factory number 21,177, list price $ 3490, and that it was purchased by assured in July, 1918, at an actual cost of $ 2500. Plaintiff introduced in evidence proof of loss showing the car was a 1916 model and that plaintiff paid $ 2200 for it, secondhand. Plaintiff testified on cross-examination on all questions contained in defendant's answer and in explanation of the transactions.

"Defendant called George D. Long, who also testified to the matters in issue relative to the alleged false representations by insured; that he was the recording agent of defendant at the time the policy was issued; that he issued the policy and inserted therein the information given him by Mr. Medes, who was the agent of defendant company and that he secured the business."

Instruction D is herewith quoted:

"The court instructs the jury that if you should find and believe from the evidence that on or about July 8, 1921, the defendant, Security Insurance Company of New Haven Connecticut, advised plaintiff that his automobile had been recovered, and was at Junction City, Kansas, and that automobile would be delivered to him, if you so find, upon payment of garage charges and a reward of $ 100 if you so find, then you are instructed...