Waddle v. Commonwealth Insurance Company
| Decision Date | 05 November 1914 |
| Citation | 170 S.W. 682,184 Mo.App. 571 |
| Parties | MRS. E. A. WADDLE, Respondent, v. COMMONWEALTH INSURANCE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Greene County Circuit Court.--Hon. Guy D. Kirby, Judge.
AFFIRMED (conditionally).
Williams & Galt for appellant.
(1) The Statute, R. S. 1909, sec. 2022, makes perjury a distinct ground of new trial. State ex rel. v. Edwards, 11 Mo.App. 154. (2) Perjury is ground for a new trial independently of the question of surprise. Ridge v Johnson, 129 Mo.App. 541; Byrd v. Vanderburgh, 168 Mo.App. 112; Berryhill v. Tribe of Ben Hur, 151 Mo.App. 415. (3) It was pertinent to the issues of the case to show that plaintiff's witness, Hawk, had been intimately associated with Walter Kendrick previous to the time of the trial; that he and Kendrick were on a note at the bank, and that the house which they jointly constructed was destroyed by fire before it was occupied and that it was insured. A conspiracy having been alleged, and a system being apparent from the similarity of the fires. 1 Wigmore on Evidence, secs. 300, 304, 340, 347, and cases cited. (4) Call the court's attention to a case which defines the meaning of the word "occupy," as used in insurance policies. Van Derhoof v. Agricultural Ins. Co., 12 N. Y. St 341-343.
Troy Pace, Hamlin & Seawell for respondent.
(1) The question of alleged perjury, when made a ground in the motion for a new trial is largely a matter within the discretion of the trial court, and unless the discretion was abused the appellate court will not interfere. Dean v Railroad, 229 Mo. 452; Byrd v. Vanderburgh, 168 Mo.App. 119; Scott v. Railroad, 168 Mo.App. 531. (2) The contention that evidence of the fact that witness Hawk had been unfortunate in having his property destroyed by fire and the circumstances of the fire, and his connection therewith, with one Kendrick, was admissible, is unworthy of notice. Even if appellant had alleged that witness Hawk was in a conspiracy, still, evidence of specific acts of incendiarism or fraud prior to the alleged conspiracy on his part would certainly not be admissible as against respondent. (3) Instruction number 3 properly defines the term "occupied as a residence," and if number 7, at the instance of appellant, conflicts therewith, then the error is favorable to it, and it is estopped to complain. Walton v. Ins. Co., 162 Mo. 328. (4) The delay and refusal to pay is vexatious, and appears so by the uncontradicted evidence. This question, however, was submitted to the jury and its decision is final. Steix v. Indemnity Co., 175 Mo.App. 171; Cascarella v. Ins. Co., 175 Mo.App. 139.
Plaintiff obtained a judgment on a fire insurance policy on household effects, and defendant has appealed. There have been two trials. The defenses pleaded, so far as necessary to note, are fraudulent representations inducing defendant to issue the policy and that the condition in the policy that the property should be protected only while the building in which it was located was occupied for a residence had been violated.
We shall notice only the questions urged in appellant's brief under the Points and Authorities, as all others are deemed waived. [Ridenour v. Wilcox Mines Co., 164 Mo.App. 576, 599, 147 S.W. 852.]
It is said that the trial court erred in overruling the motion for a new trial which charged "That perjury was committed by witnesses for the plaintiff in matters material to the issues of the case." The motion, on this point, was undertaken to be supported by an affidavit filed almost three months later, but before the motion was overruled; and we are now asked to compare a transcript of the testimony at the first trial of the case, as to the plaintiff and some of her witnesses with their testimony in the last trial, all set out in the abstract of record here, and convict the trial court of reversible error. The trial court was not furnished a transcript of the testimony of the witnesses in the first trial. We cannot convict the trial judge of error in passing on something that was not submitted to him. If the proceedings had been regular we may suggest, without deciding, that the motion is granted on this ground in the same manner as for the reason that the verdict is against the weight of the evidence and can only be reviewed when the trial judge abuses his discretion. [Dean v. Wabash Railroad Company, 229 Mo. 425, 452, 129 S.W. 953, and Scott v. Railway, 168 Mo.App. 527, 531, 153 S.W. 1058.] In the second trial the stenographer who took the testimony on the first trial was on the witness stand and was asked about some of the testimony at the former trial. No doubt defendant could have, in this manner, obtained all of the testimony at the former trial that was thought to be in conflict with that of the witnesses in this trial and thereby had the jury pass on all of the alleged perjury he charges here, if it had so desired. This assignment of error is ruled against appellant.
The defendant undertook to show a conspiracy to defraud defendant between plaintiff, another party and a party who hauled some of plaintiff's goods to the house where the fire occurred. Complaint is now made that the court did not permit him to...
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