Wisman v. Fire & Lightning Ins. Co.

• Decision Date: 06 April 1936
• Docket Number: No. 18607.,18607.
• Citation: 94 S.W.2d 908
• Court: Missouri Court of Appeals
• Parties: ROY H. WISMAN, RESPONDENT, v. HAZEL DELL FARMERS MUTUAL FIRE & LIGHTNING INSURANCE CO., APPELLANT.

94 S.W.2d 908

ROY H. WISMAN, RESPONDENT, v. HAZEL DELL FARMERS MUTUAL FIRE & LIGHTNING INSURANCE CO., APPELLANT.

No. 18607.

Kansas City Court of Appeals. Missouri.

April 6, 1936.

Appeal from Circuit Court of Osage County. — Hon. R.A. Breuer, Judge.

AFFIRMED.

Pendleton & Martin for respondent.

Embry & Embry for appellant.

BLAND, J.

This is a suit on a fire insurance policy. The case was tried before the court without the aid of a jury, resulting in a judgment in favor of plaintiff in the sum of $1200. Defendant has appealed.

The trial was had upon an agreed statement of facts, which shows that on January 1, 1931, defendants, a farmers mutual insurance company, issued to one, Williams, its policy of insurance which, among other things, insured his dwelling house for $1200 against loss by fire. The policy was to remain in force for five years after date provided that Williams should so long continue his membership in the company.

On March 7, 1932, Williams presented his policy to the secretary of the defendant company, who appended thereto a loss payable or mortgage clause reading as follows:

"Loss or damage under this policy, if any, shall be payable to the State Savings Loan & Trust Company, Quincy, Ill., beneficiary, or its assigns, as its interests may appear at time of loss. This insurance company agrees to give the mortgagee ten days written notice before cancellation of this policy.

                  "Date 3-7-1932
                            "E.R. LEHMAN, Secretary."
                

After the issuance of the mortgage clause The State Savings Loan & Trust Company assigned the note secured by the deed of trust that it held upon the property of the plaintiff, who is a resident of the State of Illinois. The agreed statement of facts recites that this assignment was "without notice to the defendant."

The agreed statement of facts further recites that there was no consideration for the executing of the mortgage clause "unless payment of the subsequent assessments, that is, assessments subsequent to the appending of that clause to the policy, and prior to the time he defaulted on his assessments, or unless the obligation, if any, of E.A. Williams to pay subsequent assessments on the policy, constituted consideration."

The policy provided for periodical payments of assessments by the members of the defendant; that notice of such assessment should be given by the treasurer on printed cards to be mailed to the member at his last known post office address requesting that the assessment be paid within fifteen days from the date of the cards; that if any member did not pay he should be notified the second time by the treasurer and if "satisfaction was not received within ten days from date of the second notice, the executive board should suspend the insurance of the member and the company be released from liability during the time of the suspension.

The facts show that the insurance of the member, Williams, was duly suspended, under the provisions of defendant's constitution, on January 25, 1934, for the non-payment of an assessment levied on November 1, 1933. The facts further show that he had paid all of the assessments prior to that one. No notice of the suspension or cancellation of the policy was given to the Savings Loan & Trust Company or to plaintiff.

On February 9, 1934, the dwelling house, at that time valued at $1200, was totally destroyed by fire. There is now due upon the mortgage a sum in excess of the amount of the policy.

Defendant insists that the petition did not state facts sufficient to constitute a cause of action because "(A) Plaintiff's right of recovery depended on compliance with conditions precedent set forth in the policy of insurance. The petition contains no allegation that any one had complied with the conditions precedent and alleges no excuse for non-compliance. Compliance with conditions precedent must be pleaded or an excuse must be given for non-compliance to make the pleadings good... . (B) The petition states two contracts with reference to the insurance in question, alleging that the defendant made a contract with one Williams and afterwards modified the contract with Williams and made contract with Williams and the plaintiff. Plaintiff must recover, if at all, on the modified contract. The modified contract is not sufficiently pleaded... . (C) Plaintiff attempts to supply the necessary allegations lacking in the petition by allegations of his reply. The plaintiff must recover, if at all, upon the allegations of his petition and not upon the allegations of his reply... . (D) The petition does not state facts sufficient to constitute a cause of action."

Nowhere in the brief is it pointed out what conditions precedent there were that plaintiff was required to comply with that did not allege that he had done so and it is not pointed out in what respect the modified contract was not sufficiently pleaded, nor in what respect the petition did not state facts sufficient to constitute a cause of action. The whole burden of searching the record to discover, if possible, in what particulars the petition is insufficient, is placed upon this court. The insurance policy includes the constitution of the defendant and covers many pages of the printed record. The burden is not upon the court to read this policy and determine what conditions precedent there are that plaintiff was required to comply with and attempt to say, without their specifically being pointed out by the defendant, which ones should have been pleaded in the petition, and why, as having been complied with by him.

It is well established that where the points relied upon are not properly developed anywhere in the brief, they will not be considered by the appellate court. [Artz v. Bannan, 71 S.W. (2d) 795; Mason v. Wilks, 228 S.W. 963; Scott v. Mo. Pac. R.R. Co., 62 S.W. (2d) 834; Seewald v. Gentry, 286 S.W. 445; Hunt v. Hunt, 270 S.W. 365; State v. Whitsett, 232 Mo. 511.]

It is insisted that the court erred in admitting evidence of the mortgage clause, for the reason that there was no consideration given to the defendant for it. It is well established that the consideration for the issuance of the insurance to the owner of the property is also a consideration for the promise to the mortgagee. [5 Couch on Ins., p. 4436; Funk v. Shawnee Fire Ins. Co., 108 Pac. 832.]

However it is pointed out that the mortgage clause was not inserted at the time the policy was written but long afterwards. In this connection it is said that the assessments paid by Williams, after the mortgage clause was executed, are the same ones which he paid or should have paid under his contract of insurance, even though the mortgage clause had never been appended to the policy, and that the assessments which he was obligated to pay were the same assessments which he would have been required to pay if the mortgage clause had not been executed. A contention of this kind would be just as reasonable had the mortgage clause been inserted at the time the policy was written. There is no merit in the point made. [13 C.J. 362.] Under the terms of the policy, and the laws of the defendant, Williams was not compelled to continue his assessments or the policy. It is reasonable to suppose that Williams would not have continued paying them had the defendant refused to execute the mortgage clause. In addition to this, under the terms of the policy, as originally written, defendant was under legal obligation to execute a mortgage clause. In this connection the policy provides:

"Section 17 — In case there be a lien by mortgage, or otherwise on property insured in this company at the time of a loss for which the company is liable, the loss shall be paid to the holder of the mortgage or lien to the extent of his interest,...