Tiller v. The Farmers' Mutual Fire Insurance Co. of Billings

• Citation: 296 S.W. 464,220 Mo.App. 1337
• Parties: H. A. TILLER, RESPONDENT, v. THE FARMERS' MUTUAL FIRE INSURANCE COMPANY OF BILLINGS, MO., APPELLANT.
• Decision Date: 09 June 1927
• Court: Court of Appeal of Missouri (US)

296 S.W. 464

220 Mo.App. 1337

H. A. TILLER, RESPONDENT, v. THE FARMERS' MUTUAL FIRE INSURANCE COMPANY OF BILLINGS, MO., APPELLANT.

Court of Appeals of Missouri, Springfield

June 9, 1927

Appeal from the Circuit Court of Greene County.--Hon. Guy D. Kirby Judge.

Judgment reversed and cause remanded.

Schmook & Sturgis and Gordon J. Massey for appellant.

(1) (a) The petition in this case is fatally defective and does not state a cause of action in that the value of the property destroyed is not stated. The petition merely states the amount of the policy, $ 785, that is, the amount the property is insured for, but nothing is alleged as to its value either when the policy was issued or when the property was destroyed. The petition does not even allege that plaintiff was damaged in any amount. It merely alleges the amount of the policy and that the property was destroyed. The prayer is for the amount of the policy. Nor is there any evidence in the record as to such value either at the time the policy was issued or when the property was destroyed. Except in cases governed by the valued policy statutes, it is necessary to both allege and prove the value of the property destroyed. Kattleman v. Insurance Co., 79 Mo.App. 447, 455; Summers v. Home Insurance Co., 53 Mo.App. 521, 523; Hilburn v. Insurance Co., 129 Mo.App. 670, 678; Howerton v. Insurance Co., 105 Mo.App. 575, 581; Boulware v. Insurance Co., 77 Mo.App. 639, 648; City of De Soto v. Insurance Co., 102 Mo.App. 1, 5; Gustin v. Insurance Co., 164 Mo. 172; Sappington v. Insurance Co., 72 Mo.App. 74. Here no evidence of the value of the property was offered, and the case was not tried on the theory that such issue was sufficiently raised by the pleadings. The Supreme Court, overruling some decisions of the Court of Appeals, has held that it is necessary to both plead and prove the value of the property destroyed, but that as to pleading if the parties went to trial without objecting to the petition, and tried the case on the theory that the petition sufficiently alleged the value, and evidence was heard as to value without objection, then the sufficiency of the petition in this respect might be held waived. Gustin v. Insurance Co., 164 Mo. 172, 90 Mo.App. 373; Howerton v. Insurance Co., 105 Mo.App. 575, 581. The courts have never held, however, that both pleading and proof as to the value could be dispensed with. 4 Joyce on Insurance, sec. 3769; 19 Cyc. 835 and 836. (b) The proof of loss put in evidence is mere proof of that fact and is no evidence of the value. Summers v. Home Insurance Co., 53 Mo.App. 521, 524; Breckenridge v. Insurance Co., 87 Mo. 62, 72; New Market v. Insurance Co., 30 Mo. 160; Brown v. Insurance Co., 68 Mo 133, 138. (2) The law as above stated does not apply to policies governed by our valued policy statutes, sections 6229 and 6239, R. S. 1919. Section 6464, R. S. 1919; Warren v. Town Mutual Ins. Co., 72 Mo.App. 188; Gibson v. Town Mutual Ins. Co., 82 Mo.App. 515. (3) The petition is also fatally defective in not alleging that the amount of the policy or any amount is due. Wright v. Insurance Co., 73 Mo.App. 365, 367; Brown v. Shock, 27 Mo.App. 351; Hilburn v. Insurance Co., 129 Mo.App. 670, 678; Jewelry Co. v. Bertig, 81 Mo.App. 393. (4) The entire omission from a petition of an essential averment is not cured by verdict. Story v. Insurance Co., 61 Mo.App. 534, 538; Staley Furnishing Co. v. Wallace, 21 Mo.App. 128; Coleman v. Insurance Co., 69 Mo.App. 566. And it is true generally that the objection to the petition in failing to state essential facts necessary to constitute a cause of action is never waived and may be raised at any time. Sec. 1230, R. S. 1919; Bateson v. Clark, 37 Mo. 31; State v. Griffith, 63 Mo. 548; Brown v. Shock, 27 Mo.App. 351; McGrew v. Railroad, 230 Mo. 496, 511; Wells v. Mutual Benefit Assn., 126 Mo. 630, 638. (5) The petition is also fatally defective in other respects. (a) It does not state that the policy sued on was one of indemnity against loss by fire. (b) It fails to aver the furnishing by plaintiff of any proof of loss, although it avers that defendant furnished plaintiff a blank for that purpose. Burnham v. Insurance Co., 75 Mo.App. 394; McCullum v. Insurance Co., 67 Mo.App. 76. (6) Instruction number 1 given for plaintiff directed the jury to find for the full amount of the policy instead of the value of the property or the amount of the loss. This is error in a case not governed by the valued policy statutes. Warren v. Insurance Co., 72 Mo.App. 188. (7) The provisions of the policy sued on do not make the company liable, in case of loss, for the full amount specified in the policy, but only for the actual loss, not to exceed the specified amount. (8) Clearly, the house was vacant and unoccupied at the time of the fire, within the meaning of the policy. 19 Cyc, 730 and 731; Cook v. Insurance Co., 70 Mo. 610; Craig v. Insurance Co., 34 Mo.App. 481; Howard v. Insurance Co., 63 Mo.App. 116; Norman v. Insurance Co., 74 Mo.App. 459. (9) If the question of waiver of the vacancy clause should have been submitted to the jury at all, then instruction number 1, given for plaintiff, is wrong in ignoring defendant's evidence. Franklin v. Kansas City, 260 S.W. 502; Wen v. Motor Transfer Co., 241 S.W. 464; Goodwin v. Eugas, 290 Mo. 673; Wason v. Sedalia, 236 S.W. 399; Smith v. Southern, 210 Mo.App. 288; Craig v. Bank of Granby, 210 Mo.App. 334; Walker v. Railroad, 210 Mo.App. 592; Hornbuckle v. McCarty, 295 Mo. 262. Nor is this error cured even if correct instructions are given for the other party. Mitchell v. Glassman, 241 S.W. 962; Hendry v. Drug Co., 211 Mo.App. 166. (10) This instruction number 1 for plaintiff is also erroneous in submitting to the jury the question whether or not the building burned was vacant and unoccupied on the date of the fire. Calhoun v. Schaff, 229 S.W. 277; Crane v. United Railways, 236 S.W. 654; Rosenberg v. Accident Ins. Co., 246 S.W. 1009; Carrall v. Young, 267 S.W. 436.

Hamlin, Hamlin & Hamlin for respondent.

We will answer points 1, 3 and 5 by suggesting that the objections made by the defendant in each point were cured by the rendition of the verdict. Coy v. Landers, 146 Mo.App. 413, 426. The sole contention in the trial court was whether or not plaintiff at the time of making the application for the insurance and the adjustment of the loss on the barn apprised Director Diemer of the character of his occupancy of the buildings, and that the same condition existed on the date of the fire. The defendant cannot in this court change theories and say that we did not prove the value of the property at the time of the fire. The defendant must try the case in this court on the same theory upon which it was tried below. Paramore v. Campbell, 245 Mo. 287; Brunswick v. Standard Acc. Ins. Co., 213 S.W. 45.

BRADLEY, J. Cox, P. J., and Bailey, J., concur.

OPINION

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 seven hundred and fifty ($ 750) dollars, and for the loss of the smokehouse, aforesaid, eighty-five ($ 85) dollars, and for a frame 10x28x10 poultry house forty ($ 40) dollars, 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 seven hundred and eighty-five ($ 785) dollars.

"Wherefore, plaintiffs prays judgment against the defendant for the said sum of seven hundred and eighty-five ($ 785) dollars 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 policyholder) 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...