Tiller v. Farmers' Mut, Fire Ins. Co.

• Decision Date: 09 June 1927
• Docket Number: Ho. 4176.
• Citation: 296 S.W. 464
• Parties: TILLER v. FARMERS' Mir. FORE INS. CO. OF BILLINGS, MO.
• Court: Missouri Court of Appeals

296 S.W. 464

TILLER v. FARMERS' Mir. FORE INS. CO. OF BILLINGS, MO.

Ho. 4176.

Springfield Court of Appeals. Missouri.

June 9, 1927.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by H. A. Tiller against the Farmers' Mutual Fire Insurance Company of Billings, Mo. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Schmook & Sturgis, of Springfield, and Gordon J. Massey, of Billings, for appellant.

Hamlin, Hamlin & of Springfield, for respondent.

BRADLEY, J.

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

Plaintiff's petition is as follows:

"Plaintiff states:

"That he resides in Greene county, and did on the dates hereinafter mentioned, and also does now, and on said date owned certain real estate in section 32, township 31, range 22, in said county, with a frame one-story 14x26 dwelling and two additions, one story each. 14x14, and two porches 8x14, and one frame smokehouse 12x14x8.

"That the defendant issued its policy of insurance on the 7th day of June, 1922, and delivered the same to him, in which it agreed to pay him, in case of loss of said dwelling, additions, and porches as aforesaid, the sum of $750, and for the loss of the smokehouse aforesaid $85, and for a frame 10x28x10 poultry house $40, for which the plaintiff paid the premium charged by the defendant, and fully complied with all the terms of the contract and policy imposed upon him.

"That on the 31st day of January, 1925, the property, aforesaid, to wit, the dwelling and smokehouse, was totally destroyed by fire. That plaintiff, within a reasonable time thereafter, and in accordance with the policy, notified the defendant of his said loss, and requested it to furnish him with a blank with which he could make proof, which it did on the 12th day of March, 1925, and requested the defendant to pay him the amount due, to wit, $785.

"Wherefore plaintiff prays judgment against the defendant for the said sum of $785, with interest thereon from the 12th day of March, 1925, and all costs of suit."

The answer is a general denial, and then follows an averment that defendant is a farmers' mutual fire insurance company, organized under the law for the purpose of insuring its members against loss from fire and other casualties. Further answering, defendant avers that all of its policies, including the policy sued on, contains this clause:

"Should a member (thereby meaning any and every policy holder) vacate or remove from any building and leave the same unoccupied, the insurance thereon shall be utterly void, unless he first procure from the secretary a vacancy permit, which in no instance shall be issued for a longer period than sixty days."

Defendant further answers as follows:

"Defendant further says that, at the time of the alleged fire, the building, being a dwelling house alleged by plaintiff to have been insured by the policy sued on and destroyed by fire, was vacant and unoccupied, and the plaintiff had for a long time theretofore vacated and removed from said building and left the same unoccupied, without procuring from the secretary of defendant any vacancy permit and without defendant's knowledge and consent; that thereby said policy of insurance, if otherwise valid, became and was void and same was not in force at the time of the alleged destruction of said dwelling house by fire.

"Defendant for another and further defense alleges that each and every policy of insurance against loss by fire issued by it, including the policy sued on in this case, contains the following provision, to wit: 'In case of loss, the assured shall, within three days, if a building or other property, notify the director of said company residing nearest the place of loss, and shall within sixty days from the date of such loss render to the secretary of said company at Billings, Christian county, Mo., a particular and accurate account of such loss, signed and sworn to by the assured, stating the date and circumstance of the same, the exact nature of the title and interest of the assured and all others in the property, by whom and for what purpose the property, if a building, was used or occupied at the time of the loss.' Also the following clause and provision, to wit: `If the assured has misrepresented, in writing or otherwise, any material fact or circumstance concerning the property insured, or if the interest of the assured in the property be not truly and correctly stated in the application or at the time such insurance is obtained, or in case of any fraud or false swearing touching any matter relating to such insurance or the subject thereof, whether before or after a loss has been sustained, in each of such instances any policy of this company shall be null and void.'

"This defendant further states that the plaintiff did, on the 7th day of February, 1925, furnish to the defendant proof of loss in writing, subscribed and sworn by the plaintiff before a notary of public of Greene county, Mo., duly commissioned and authorized to administer oaths and authenticate affidavits; that in said proof of loss and as a part thereof the plaintiff falsely stated in writing, subscribed and sworn to by him, that the premises, meaning the building alleged in the petition to have been destroyed by fire, were actually occupied and inhabited at the time of the alleged loss; whereby plaintiff was guilty of false swearing, touching an important matter relating to such insurance and the subject thereof after the alleged loss had been sustained, and whereby said policy was made null and void."

In reply, plaintiff denied that, at the time the dwelling was destroyed by fire, it was vacant and unoccupied and had been for a long period, and alleged that on and prior to June 7, 1922, when the policy was issued, he was single and owned the land upon which was the insured property, and that prior to June 7, 1922, he made application to Joe Diemer, a director of defendant, for insurance on the property, and gave to Diemer a full description, and explained to him the character of occupancy, to wit, that he (plaintiff) kept in said dwelling a considerable lot of household goods which were used by him when he could be on the farm looking after and caring for it; that said household goods consisted of chairs, beds, wardrobe, stove, and other articles used in keeping house; that he further explained to Diemer that at that time and for some time prior he was employed at Springfield, Mo., and there boarded with his brother, and that he was only on the farm at such times as he thought necessary to properly look after and care for it, and that he was intending and was attempting to procure a tenant ; that, after he had explained the character of occupancy, Diemer prepared the application, and that thereafter the policy was issued and delivered; that he paid all the assessments levied; that March 13, 1924, the barn, which was then insured, burned, and that within three days thereafter he notified Diemer, as the policy required, of the loss, and that he and Diemer went to the farm, viewed the loss; and that this loss was adjusted. Plaintiff further alleges in his reply that while he and Diemer were on the premises, when the loss of the barn was adjusted, he informed Diemer that after the policy was issued on June 7, 1922, a tenant had lived in the house from March 12, 1923, to March 13, 1924, but that the tenant had moved out, and that the premises at that time were occupied as they were when the policy was issued, and that his intention was to procure another tenant, and that Diemer on that occasion examined the premises, and, after so doing, informed plaintiff that the premises were occupied within the meaning of the policy, and that the remaining insurance on the dwelling and poultry house was in full force and would be so continued until the date of the expiration of the policy, provided assessments were paid; that thereupon plaintiff delivered to Diemer the policy, so that Diemer could send same to the home office at Billings, so that the insurance on certain property covered by the policy as originally written could be canceled or eliminated, and that thereafter all that would be covered would be the dwelling, smokehouse, and poultry house, and that Diemer sent in the policy, and the property designated to be eliminated was eliminated, leaving insurance on the dwelling, smokehouse, and poultry house for $875, and that the policy was then returned by defendant to plaintiff.

Defendant pleads the aforesaid alleged facts set out in his reply as an estoppel or waiver against defendant's defense that the dwelling was unoccupied.

Error is assigned (1) on the refusal, at the close of the ease, of defendant's instruction In the nature of a demurrer to the evidence;

(2) on the admission and exclusion of evidence; and (3) on the instructions.

What we may term the demurrer raises three questions, viz.: (1) That the petition fails to state a cause of action; (2) that the policy was rendered void because the vacancy provision was breached; (3) that plaintiff was guilty of false swearing in the proof of loss February 7, 1925.

So far as appears, the petition was at no time specifically challenged below, but, if it fails to state any cause of action, it may be challenged at any time. Section 1230, R. S. 1919; State ex rel. Kansas City Light & Power Co., v. Trimble (Mo. Sup.) 262 S. W. 357. The petition is challenged on the ground that the value of the property destroyed is not alleged. Also it is contended that there was no evidence as to the value of the property, and that the defect in the petition is not cured. Defendant is a farmers' mutual insurance company, organized under section 6464, R. S. 1919, and is specifically exempted by the statute from the law applicable to general insurance companies; therefore its policies are not affected by the valued policy statute. Section 6239, R. S. 1919. Defendant's...