Wood v. General Ins. Co. of America

• Decision Date: 03 December 1934
• Citation: 77 S.W.2d 167,229 Mo.App. 296
• Parties: CLARENCE WOOD, RESPONDENT, v. GENERAL INSURANCE COMPANY OF AMERICA, APPELLANT
• Court: Kansas Court of Appeals

77 S.W.2d 167

229 Mo.App. 296

CLARENCE WOOD, RESPONDENT, v. GENERAL INSURANCE COMPANY OF AMERICA, APPELLANT

Court of Appeals of Missouri, Kansas City

December 3, 1934

Appeal from Circuit Court of Vernon County.--Hon. Chas. A Hendricks, Judge.

Reversed and remanded.

Dan Z Gibson and E. E. Teel for respondent.

Hallett & Hallett for appellant.

OPINION

BLAND, J.

This is a suit upon a fire insurance policy. There was a verdict and judgment in favor of plaintiff, totalling the sum of $ 450.75, which included interest in the sum of $ 15.75 damages for vexatious refusal to pay in the amount of $ 35 and attorneys fees in the sum of $ 50. Defendant has appealed.

The facts show that the policy was issued by the defendant on March 14, 1932, insuring plaintiff's furniture, then located at 1308 North Cedar Street in the city of Nevada. The policy was in the sum of $ 600 and expired on March 14, 1933. A fire occurred on March 7, 1933, while the property was located at 716 East Vernon Street in the city of Nevada. Plaintiff sued for the full amount of the policy, together with penalty and attorneys fees provided by the statute.

The petition alleges that the policy is "marked exhibit A and herewith filed." The answer consists of a general denial and a plea that the property was destroyed or damaged by the wilful and intentional starting of the fire by the plaintiff or his agents. The answer is unverified. The reply consists of a general denial.

It is insisted by the defendant that its instruction in the nature of a demurrer to the evidence should have been sustained for the reason, among others, that the undisputed testimony shows that the goods at the time of the fire had been removed from the place where they were insured. This contention must be sustained. [Giboney v. The German Ins. Co., 48 Mo.App. 185, 192; Wright & Son v. Fire Ins. Co., 73 Mo.App. 365; Hilburn v. Ins. Co., 129 Mo.App. 670, 108 S.W. 576; Young v. Queen Ins. Co. of Am., 201 S.W. 940; Thomasson v. Ins. Co., 114 Mo.App. 109, 118, 89 S.W. 564; Thomasson v. Ins. Co., 217 Mo. 485, 116 S.W. 1092; 26 C. J., p. 508.]

However, it is plaintiff's contention that the policy contained a removal permit and he has brought here, by an additional abstract of the record, the policy, itself, which purports to contain such permit, issued by the defendant, consenting to the removal of the property insured to the place where it was burned. Defendant insists that the removal permit so brought here by the plaintiff was improperly attached to the petition by him, as it was not attached to the policy when the latter was filed as an exhibit with the petition and that it was not introduced in evidence.

We find that neither the alleged removal permit nor the policy, itself, was introduced in evidence and whether the permit was a part of the policy which was attached to the petition as an exhibit is immaterial for the following reasons:

While, under the provisions of Section 965, Revised Statutes 1929, the execution of the policy sued on stood confessed, as the answer was not verified, and it was unnecessary to introduce the policy in evidence (Thomas v. Life Ass'n, 73 Mo.App. 371; Love v. Central Life Ins. Co., 92 Mo.App. 192), it was only such an instrument as was pleaded in the petition that stood confessed. [Locatelli v. Flesher et al., 220 Mo.App. 447, 449, 450, 276 S.W. 415; Johnson v. Woodmen of the World, 119 Mo.App. 98, 102.] An exhibit attached to the petition is no part of the record proper. [Scott v. Union Liability Co., 194 S.W. 900; Highland Inv. Co. v. Scales Co., 277 Mo. 365, 374, 375, 209 S.W. 895; Ransom v. Potomac Ins. Co., 45 S.W.2d 95, 97.] Therefore, we are not able to look at the policy brought here by the plaintiff because it is not a part of either the record proper or the bill of exceptions. It is not a part of the latter because it was not introduced in evidence and was never made a part of such bill. [Scott v. Union Liability Co., supra; Ransom v. Ins. Co., supra.]

The petition, itself, is very inartistically drawn and is attacked herein by the defendant as not stating any cause of action, for the reason that it does not allege that the goods destroyed remained in the place where they were insured until the time of the fire. There is no express allegation to that effect but at this stage of the proceedings the petition undoubtedly alleges enough to withstand attack from that standpoint, had the goods so remained there. [See Young v. Queen Ins. Co., supra.]

However the petition does not refer in any manner, by inference or otherwise, to a removal permit. It is, therefore, apparent that the failure of defendant to verify its answer did not amount to a confession of the execution of such a permit. It follows that the removal permit cannot be...