Winston v. Hartford Fire Ins. Co., 7672

• Citation: 317 S.W.2d 23
• Decision Date: 15 October 1958
• Docket Number: No. 7672,7672
• Parties: Charlie WINSTON and Mildred Winston, Plaintiffs-Respondents, v. HARTFORD FIRE INSURANCE COMPANY, a Corporation, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 23

317 S.W.2d 23

Charlie WINSTON and Mildred Winston, Plaintiffs-Respondents, v. HARTFORD FIRE INSURANCE COMPANY, a Corporation, Defendant-Appellant.

No. 7672.

Springfield Court of Appeals, Missouri.

Oct. 15, 1958.

Farrington & Curtis, E. C. Curtis, Thomas G. Strong, Springfield, for appellant.

Stemmons & Stemmons, Mr. Vernon, for respondent.

McDOWELL, Judge.

This is an action on a fire insurance policy. The issues presented by the pleadings are: 1. Whether or not the building destroyed by fire was located on the property described in the policy. 2. Whether or not plaintiff had an insurable interest in such building, and, 3. Was the building, at the time the policy was issued, within the terms of the policy or covered by the provisions thereof?

The cause was tried by aid of a jury and judgment rendered for plaintiffs in the sum of $500. Defendant appealed.

In addition to the $5,000 coverage on plaintiffs' one and one-half story residence situated on a two acre suburban tract in Sec. 19, Twp. 28, R. 26, Lawrence County, Missouri, the policy provided: '* * * such insurance shall include building equipment and fixtures and outdoor equipment pertaining to the service of the premises (if the property of the owner of the dwelling), while located on the premises described on the first page of the policy, but not trees, shrubs, plants or lawns.

'The Insured may apply up to ten per cent (10%) of the amount specified for the dwelling, to cover private structures appertaining to the dwelling described and located on the premises, but not (a) structures used in whole or in part for * * * farming purposes, * * *'

We here state the evidence offered which is decisive of the issues involved. Plaintiff, Mildred Winston, and her brothers, Eldred and Harold Roberts, acquired title to 112 acres of farm land in Sec. 19, Twp. 28, R. 26, Lawrence County, Missouri, as heirs of their parents. There was originally located on this tract of land the one and one-half story dwelling, described in the insurance policy, and a barn 30 X 40 feet, which had attached thereto a building, referred to in the testimony as a garage or shed, 10 X 30 feet. This smaller structure was a frame building on a separate foundation. It had a tin roof and one side composed of boards that ran vertically. It had no floor. The west end of the small building was inclosed by a door or wall. The east end, which faced the dwelling, was open. There was no foundation at either end but a strip of concrete ran the length of the building on the north side. The barn wall served as one side of the garage or shed.

Plaintiff, Charlie Winston, testified that the barn and shed, or garage, were under one roof. He gave this testimony:

'Q. You are not asking the insurance company to pay you because it was a separate building? A. No.'

This witness stated that he assumed the barn and garage, or shed, were all built at the same time. A picture of the destroyed building was offered in evidence as defendant's exhibit I, and plaintiff, Mildred Winston, testified that it seemed from the picture that the barn and garage were one building, under the same roof, and that the rafters from the barn came right on across into the garage but she stated there was a separate foundation under the garage.

Plaintiffs' evidence was to the effect that the shed or small building was always used for a garage while he lived there. He stated that his wife's father had stored his automobile in this shed prior to his death. He testified:

'Q. And how often did you park your automobile in that building? A. Every night with the exception of the time of the fire'.

He testified that at the time of the fire there was a tractor in the garage building which belonged to Eldred Roberts and that it was destroyed by the fire. He said this was the only time he remembered that a tractor was placed in the shed.

It was undisputed that at the time the policy of insurance was issued the main barn was used in the storing of corn, hay, oats and fertilizer and it was admitted that the tractor was attached to a loaded wagon of corn. There is no contention that the insurance policy covered the entire building. The evidence shows that the east side of the garage, or shed, is 175 feet west of the dwelling house.

Charlie Winston, plaintiff, made application for and received the policy of insurance sued on. The policy was written by A. H. Schmidtke, Agent of the defendant-company, who lives in Mt. Vernon, and, at the time of the application, Winston told Schmidtke that it was agreed between the heirs that he and his wife, Mildred, would receive the house and two acres of land as their portion of the property. He gave this testimony:

'Q. You told him you were to receive the house under that agreement? A. Yes.

'Q. And a two acre tract of land? * * * A. I may have, yes.

'Q. You don't remember telling him that in the two acre tract you were to receive that the line was one hundred twenty-five feet, the west line was one hundred twenty-five feet from the house under the agreement? A. I could have, but I don't recall any definite line at that time.

'Q. Was that the basis of your agreement you had with your wife's brothers, that your line was to be one hundred twenty-five feet west of your house? A. It turned out to be that way in February.

'Q. You knew that at the time you saw Mr. Schmidtke, did you not? A. Not for sure.

'Q. You actually set that line one hundred twenty-five feet back west of the house though didn't you? A. Yes. It was set around one hundred twenty-five feet from the house.'

In his deposition Mr. Winston stated he did tell Mr. Schmidtke at the time he applied for the policy of insurance that he and his wife were to get a two acre tract of land.

The evidence shows that the only buildings on the two acres of land actually received by plaintiffs in the division of the land were two chicken houses, smoke house and tool shed. It is admitted by plaintiffs that they got a suburban rate of insurance on the house because it was near enough to town and that at the time the policy was issued, it was explained that the farm rate would be higher.

Mrs. Winston testified that the reasonable value of the garage building destroyed was $500; that she was basing her figure on the amount it would cost to construct a new garage.

A. H. Schmidtke testified for defendant that he was in the lumber and insurance business in Mt. Vernon; that he wrote the policy of insurance in issue. He said Mrs. Winston first came in and told him that it was agreed between the heirs that she was to get the residence consisting of two acres, more or less, and desired to have insurance on said dwelling. She said she did not know the exact line but that it would be 100 to 150 feet west of the dwelling; that she was not sure it would take in the first shed; that the barn farther west would go to Eldred.

Witness testified that Charlie Winston came in later and wanted to insure the dwelling and its contents. He stated he was familiar with the premises and had known it for several years; that Mrs. Winston said she intended living in the property and he informed her that he could insure the property under suburban rate, she said she did not intend to use the property for farming operations. Witness said he told plaintiffs that since the barn was not on the property he could use the suburban rate; that the farm rate was $1.00 and the suburban rate was $.38. He testified that the barn had been built some thirty five years ago. On cross examination witness testified that he had known Mildred Winston, her brothers and their parents many years; that he had known Mildred Winston all her life.

In rebuttal Mildred Winston denied that she discussed the buying of insurance with Schmidtke. She said she was never in his office.

At the close of the evidence defendant filed a motion for directed verdict. Two of the grounds relied on were:

1. Because the evidence conclusively shows the building sued for was used, at least in part, for farming purposes and not covered by the policy.

2. That the building was not located on insured premises.

In our opinion we will refer to respondents as plaintiffs and appellant as defendant, the position occupied by the parties in the lower court.

Defendant first contends that the trial court erred in failing to sustain its motion for directed verdict at the close of the evidence.

On appeal the court does not weigh evidence in a jury tried case, and may interfere only when there is a complete absence of probative facts to support the verdict. Siegel v. Ellis, Mo.Sup., 288 S.W.2d 932. And, in determining whether the trial court erred in overruling defendant's motion for a directed verdict at the close of all the evidence, appellate court must consider only the evidence most favorable to plaintiff and reasonable inferences to be drawn therefrom, and must disregard defendant's evidence unless it aids plaintiff's case. Eddy v. Missouri Public Service Co., Mo.App., 309 S.W.2d 4; Adkins v. Sutherland Lumber Co., Mo.App., 307 S.W.2d 17; Leek v. Dillard, Mo.App., 304 S.W.2d 60.

The first reason assigned, in support of this alleged error, is that the evidence conclusively shows the building referred to in the pleadings was used, at least in part, for farming purposes and hence not covered by the policy of insurance.

An insurance policy is a written contract between the insurer and the insured and each is bound by its terms. Cole v. Kansas City Fire & Marine Ins. Co., Mo.App., 254 S.W.2d 304, 306; Central Surety & Insurance Corp. v. New Amsterdam Casualty Co., 359 Mo. 430, 222 S.W.2d 76; Warren v. Royal Exchange Assur. Co., Mo.App., 205 S.W.2d 744.

If the language used in the insurance contract is plain and unambiguous, there is no room for construction and its terms must be accepted as written. Cole v. Kansas City Fire & Marine Ins. Co., supra, 254 S.W.2d at page 306. (See authorities cited).

The insurance contract sued on...