Thomas v. American Central Ins. Co.

• Decision Date: 13 August 1927
• Docket Number: No. 4237.,4237.
• Citation: 297 S.W. 982
• Parties: THOMAS v. AMERICAN CENTRAL INS. CO.
• Court: Missouri Court of Appeals

297 S.W. 982

THOMAS v. AMERICAN CENTRAL INS. CO.

No. 4237.

Springfield Court of Appeals, Missouri.

August 13, 1927.

Rehearing Denied September 22, 1927.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by Mrs. Emma Thomas against the American Central Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Leahy, Saunders & Walther and Lyon Anderson, all of St. Louis, for appellant.

Ward & Reeves, of Caruthersville, fox respondent.

BRADLEY, J.

This is an action on a fire insurance policy. Plaintiff recovered, and defendant appealed.

The petition is in conventional form, except that it invokes the penalty for alleged vexatious refusal to pay. The prayer asks judgment for $2,000, the face of the policy, with interest and penalty, but no penalty was recovered. It is alleged in the amended answer that by the terms of the policy defendant was liable only for the reasonable value of the property destroyed; that the value of the property destroyed and covered by the policy did not exceed the sum of $1,500.

Further answering, defendant alleged that at the time the policy was issued a portion of the property insured was mortgaged; that defendant did not know of the existence of this mortgage at the time the policy was issued ; that by the terms of the policy defendant was not liable for the loss of the insured property embraced within the mortgage; and that the policy is void as to the mortgaged property. The reply was a general denial.

Error is assigned (1) on the action of the court in striking out a part of defendant's original answer and the whole of what is denominated a cross-petition and (2) on the instructions given for plaintiff.

In its original answer, defendant sought to convert the action from one at law to one in equity by pleading facts in the nature of a bill of interpleader. In addition to defenses at law, defendant in its original answer alleged that, when it was about to pay plaintiff on the agreed basis of $1,500, it was notified by Laura M. Langley that she held a mortgage on the insured property and was entitled to the proceeds of the policy, and warned defendant that, if it paid the amount due under the policy to plaintiff, she (Laura M. Langley) would sue defendant for the amount due under said policy; that R. B. Langley made a similar claim, stating that he too held a valid mortgage on the insured property and was entitled to the proceeds of the policy. Defendant further alleged in its original answer that it had no means of ascertaining the true facts or who was lawfully entitled to the fund due under said policy; that said fund was claimed by plaintiff and the Langley; that defendant made no claim to said fund for itself, but that it was a mere stakeholder, and that no act on its part had brought about the conflicting claims; that in order to make complete termination of the conflicting claims it was necessary that the Langley be made parties.

The original answer concluded as follows:

"Wherefore, defendant prays that the said Laura M. Langley and the said R. B. Langley be made parties to this suit and a writ of summons ordered to issue, returnable to the next term of this court, in order that the court may have before it all the parties interested in this suit; that the court order the said Laura M. Langley and R. B. Langley to set up their claims to said fund in an appropriate pleading, so that the court may, at the hearing of this suit, effect a complete determination of the rights of all the said parties. And defendant now brings into court and deposits with the clerk of this court the sum of $1,500, and herewith tenders said sum into court for whoever the court may determine is entitled to said fund."

In what Is denominated a cross-petition, filed at the time the original answer was filed, defendant sets out more in detail than in the original answer the alleged facts upon which the theory of interpleader is founded. The cross-petition concludes as follows:

"Wherefore, defendant prays that said Laura M. Langley and the said R. B. Langley be made parties to this suit and that a writ of summons be issued, returnable to the next term of this court, directed to each of said parties, making them defendants in said cause; that the court enter an order directing plaintiff to amend her petition by making the said Laura M. Langley and R. B. Langley defendants in this suit and to amend her petition by tendering the issues of the validity of said mortgages and the right of Laura M. Langley and R. B. Langley to assert a claim under said policy and upon failure to do so to dismiss plaintiff's suit; that the court enter an order that the said Laura Langley and the said R. B. Langley set up their rights to said fund, if any they have, in an appropriate pleading at the return term of the aforesaid writs; that the court decree specific performance of the agreement adjusting said loss, and that the court determine the rights of each party to said fund and construe the terms of the said mortgages and of the policy of insurance herein involved in connection with said mortgages and determine the validity of the said mortgages and determine whether or not, under their terms, the holders thereof, or either of them, are entitled to any part of the proceeds of the said fund hereinbefore mentioned; that the lien of the said mortgages, if any, be determined and ordered satisfied out of the fund hereinbefore mentioned, which defendant has deposited in the registry of this court; that the policy of insurance hereinbefore mentioned be ordered brought into court and canceled by the clerk thereof and defendant stand discharged of all claims, whether legal or equitable, by reason of said policy now being asserted, or hereafter asserted, by either the plaintiff herein or the said Laura M. Langley or R. B. Langley; that the lien of said chattel mortgage, if any, on said fund, be foreclosed by the application of the fund paid into court by this defendant to the payment of the claims as the interest of the different parties may appear; and that the plaintiff and the said Laura M. Langley and the said R. B. Langley be perpetually enjoined from prosecuting any action at law or in equity for said fund, and for whatever further relief the court shall deem proper."

On motion, the whole of the cross-petition and all that portion of the original answer on the interpleader theory were stricken out. The insured property was destroyed by tire March 6, 1926. About a week thereafter defendant's adjuster went to Gideon, Mo., where the fire occurred, for the purpose of adjusting the loss. During his investigation, he learned that plaintiff's husband on October 16, 1925, had given to R. B. Langley and Laura Langley a chattel mortgage on some groceries which the adjuster considered as the same groceries covered by the policy. Upon learning this, adjustment was deferred until May 17th, at which time the...