Trantham v. Home Ins. Co. of New York

• Decision Date: 15 February 1940
• Docket Number: No. 6050.,6050.
• Parties: TRANTHAM v. HOME INS. CO. OF NEW YORK.
• Court: Missouri Court of Appeals

137 S.W.2d 690

TRANTHAM v. HOME INS. CO. OF NEW YORK.

No. 6050.

Springfield Court of Appeals. Missouri.

February 15, 1940.

Rehearing Denied March 12, 1940.

Appeal from Circuit Court, Oregon County; Will H. D. Green, Judge.

"Not to be published in State Reports."

Action on a fire insurance policy by Melvin Trantham against the Home Insurance Company of New York. Judgment for plaintiff, and defendant appeals.

Affirmed if plaintiff enters remittitur, and otherwise reversed and cause remanded.

Farrington & Curtis, of Springfield, and E. P. Dorris, of Alton, for appellant.

John P. Moberly, of Houston, and Gordon Dorris, of Alton, for respondent.

FULBRIGHT, Judge.

This is an action on a fire insurance policy and originated in the Circuit Court of Oregon County, on the 25th day of August, 1937, upon the filing of a petition by plaintiff, the purpose of which was to recover from defendant the sum of $1,150, with interest, for loss by fire of the property covered by the policy, $250 attorneys' fee, and 10% of principal and interest due thereon for vexatious refusal to pay.

Thereafter, at the February Term, 1938, of said Circuit Court, defendant filed its answer, and thereupon plaintiff filed his reply. The cause then proceeded to trial resulting in a verdict for the plaintiff in the sum of $1,214.20, apportioned as follows: $922 on the policy, $200 attorneys' fee and $92.20 as interest for vexatious refusal to pay. Motion for a new trial was overruled and defendant appeals.

The petition is in conventional form and alleges, among other things, that at the time of the fire the dwelling house insured was of the value of $1,000, the barn of the value of $400 and the feeds and grains of the value of $250; that they were totally destroyed by fire; that as a result, the amount of the policy has become due and payable, but defendant has failed and refused, and still fails and refuses to pay said amount. The petition prayed judgment for $1,150 and attorneys' fee in the sum of $250 for alleged vexatious refusal of defendant to pay in accordance with the demand.

The answer admitted the execution of the policy and payment of the premium. For defense it alleged the policy was issued pursuant to a written application filed by plaintiff; that among the questions asked and answers given in said application were the following:

"Q. How much land do you own where property to be insured is located? A. 320 Acres.

"Q. Value per acre? A. $10.00.

"Q. When purchased? A. 1936.

"Q. Price paid? A. $2,000.00."

Provisions of the policy were then pleaded which provided for forfeiture for breach of warranty, fraud in procurement of the policy and false swearing. It alleged that plaintiff in his application, misrepresented the purchase price of said farm which constituted a breach of warranty; that the misrepresentation was willfully made to deceive the company and the policy was obtained by fraud; that after the fire plaintiff was subjected to an examination under oath, as provided by the policy and that plaintiff had sworn falsely in regard to the purchase price of the farm. The answer further tendered return of all premiums paid, together with interest.

Plaintiff replied, alleging that defendant had waived the defense set up in the answer for the reason that it had required plaintiff to go to the trouble and expense to subscribe to the examination under oath after it had come into possession of the facts pleaded as a defense.

The policy upon which the petition is based was issued on the 14th day of October, 1936, and is what is known as a Five-Year Farm Policy, with the premium due in annual installments. The premium for the first year, $14.72, was paid in cash when the policy was delivered. A note was given to defendant, by plaintiff, covering the remainder of the premiums, payable in annual installments of $14.72. The aggregate amount of the policy amounted to $1,150 covering property in Oregon County, as follows: Frame dwelling house, $600; barn and sheds, $300; grain and seeds in barn, $100; hay, straw and fodder in barn, $150.

The farm was in possession of one Mary Nirk, a widow, who lived on it for a number of years under claim of ownership. She leased it to plaintiff for grain rent for the crop-year 1936. In March or April of that year, he and Mrs. Nirk began negotiations which resulted in his purchase of the farm. Mr. Sype, an insurance agent and Notary Public, drew up a contract and deed, and, although the contract was not offered in evidence, it is agreed that it was executed April 28, 1936 and covered the farm in question. The consideration was $1,000. On the same day the contract was executed, Mr. Sype prepared a general warranty deed from Mrs. Nirk to plaintiff for the premises described in the contract. The consideration in the deed was $1,000. The contract and deed, after execution, were deposited with the Bank of Alton. Both were prepared by Mr. Sype in the presence of plaintiff and Mrs. Nirk, and it was understood and agreed that the consideration in both instances should be $1,000. No suggestion was made that the actual consideration was $2,000. At the time of the execution of the contract and deed, plaintiff gave Mrs. Nirk his check for $80 in part payment. Sometime prior to the 11th of July, 1936, he gave her another check for $720, as part payment and on July 11, 1936, plaintiff and Mrs. Nirk met at the office of Mr. Sype, the abstract was ready, a quitclaim deed, which Mrs Nirk was to secure from a relative, had been received, and on this date plaintiff gave her a third check for $200, completing the $1,000 consideration mentioned in the deed and contract. The deed and contract, which were held in escrow by the bank, was obtained and delivered to plaintiff, whereupon he took it to the Recorder's office for recording. At the same time Mrs. Nirk had the quit-claim deed, which had been made to her, placed of record.

Plaintiff went into possession of the property and moved a tenant into the house. A fire occurred on May 21, 1937, which destroyed the house, barn and some grain and hay, which were stored in the barn.

There is no dispute over the contents of the application for the insurance policy, except the truthfulness of the statement as to the purchase price of the farm. Plaintiff testified that the actual consideration paid was $2,000, and further testified that the additional $1,000, over and above the consideration contained in the deed and contract, was paid by labor performed for Mrs. Nirk, amounting to approximately $100, $800 in cash, paid in various amounts, and two hogs weighing about 200 pounds each, which she took on the deal at 11¢ per pound. Plaintiff admitted he took no receipts and kept no record of when the work was done, the hogs sold or of the various amounts paid or the dates when such payments were made, and his statement, on oath, made pursuant to the provisions of the policy, are at variance in many instances, with his testimony given on the trial.

The agent for the insurance company, through whom plaintiff secured the policy, reported to the company that the farm upon which the buildings insured were located, was worth $8 per acre, although he states the policy would not have been issued had he known plaintiff gave only $1,000 for it. Mrs....