Yarber v. Connecticut Fire Ins. Co.

• Decision Date: 17 September 1928
• Docket Number: No. 4464.,4464.
• Parties: YARBER v. CONNECTICUT FIRE INS. CO.
• Court: Missouri Court of Appeals

10 S.W.2d 957

YARBER v. CONNECTICUT FIRE INS. CO.

No. 4464.

Springfield Court of Appeals. Missouri.

September 17, 1928.

Opinion Modified November 22, 1928.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by Mrs. A. E. Yarber against the Connecticut Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed.

Schmook & Sturgis, of Springfield, and Smith & Zimmerman, of Kennett, for appellant.

W. G. Bray, of Senath, and James A. Bradley, of Kennett, for respondent.

BAILEY, J.

This is a suit on a fire insurance policy issued by defendant to plaintiff. No question is raised as to the pleadings. The policy was issued in December, 1921, for a term of five years, insuring plaintiff's property against loss by fire in the sum of $1,400. The insurance premium was not paid in advance, except the first payment of $30, the balance being evidenced by an installment note in the sum of $120, by the terms of which plaintiff agreed to pay, without interest, the sum of $30 on the 1st day of December of each of the years 1922, 1923, 1924, and 1925. The policy, as well as the note itself, contained a provision that, in case of nonpayment of any one of the installments, at maturity thereof, the company would not be liable for loss during such default, and that the policy should lapse until payment of such delinquent installment to the company, but to be revived upon payment of all installments due. The policy contained the further stipulation that "the failure of the assured to receive notice of the approaching maturity of the premium note or notes, or installments thereof, shall not operate to render the company liable for any loss or damage while such note or notes, or installments thereof, remain over-due and unpaid." The policy further provided that, within 60 days after any loss, the insured should furnish the company a particular account of such loss, stating when and how the loss originated, the nature of insured's title, the cash value of each item and amount of loss thereon; the incumbrances, if any, etc. The defense was based on the alleged failure of plaintiff to pay one of the installments due on the premium note, as a result of which the policy is alleged to have lapsed, and, at the date of the fire, November 5, 1926, the policy was not in force. A further defense was made on the theory that plaintiff failed to furnish the verified statement, as required by the policy, within 60 days of the loss. Upon these issues, tried to a jury, the verdict and judgment was for plaintiff in the sum of $1,375, from which judgment defendant has appealed.

The principle point made in the briefs and arguments relates to the failure of the trial court to sustain defendant's demurrer to the evidence. It is urged that plaintiff failed to prove the installment due on the premium note in December, 1924, was ever paid. Plaintiff does not dispute the fact that the provision in the policy, by the terms of which the policy lapsed during the period any matured installment remained unpaid, was a valid and binding stipulation in the insurance contract. The issue then is clean cut. If there was any substantial evidence tending to support plaintiff's claim that the installment in question was paid, the demurrer was properly overruled, in so far at least as the issue of payment may be involved, and we are bound by the jury's verdict.

While admitting the general rule that an appellate court will not ordinarily attempt to weigh the evidence on appeal in actions at law, defendant contends that the undisputed documentary evidence in this case, together with other facts, is so overwhelmingly and manifestly against the verdict as to indicate conclusively that the verdict was the result of passion or prejudice, and that this court not only has the right, but, in justice, should interfere. Such a rule seems to have been recognized, ex necessitate, as proper appellate practice by some of the decisions in this state. Jeans v. Morrison, 99 Mo. App. 208, 73 S. W. 235; Kazee v. Kansas City Life Ins. Co. (Mo. App.) 217 S. W. 340; Pietzuk v. Kansas City Railways, 289 Mo. 135, 232 S. W. 994.

The rule has been thus stated:

"The warrant for appellate interference of this character is a finding by the jury incomprehensible on any theory consistent with a proper regard for their duty to determine issues according to law and evidence." Spiro v. St. Louis Transit Co., 102 Mo. App. 250, loc. cit. 265-266, 76 S. W. 684, 689.

An examination of the evidence on the question of payment of the installment note due in December, 1924, will determine whether or not such a rule may be invoked in this case. Plaintiff relied on the testimony of three witnesses, viz., herself, a Mr. Douglass (local insurance underwriter of defendant), and Troy Vaughn, her son. It is conceded that plaintiff paid $30 cash when the policy was issued, and then paid the installments due December 1, 1922, and the one due December 1, 1923. These payments were duly credited on the back of the installment note held by defendant. When the fourth installment came due, December 1, 1924, plaintiff was in Arizona, where she remained until August, 1925. Her son, Troy Vaughn, looked after her farm and business during her absence. After testifying as to the first and second payments, plaintiff further testified on cross-examination that:

"When the next payment, which would be the third, came due, I was in Arizona. I didn't pay that myself."

"Q. You don't know anything about the payment of that except as you were told afterwards? A. Yes, sir, and then I got my receipt after I came home. That made me think it was sure paid. The receipt I got was from the company. That receipt came in my mail and Troy kept it and gave it to me when I came back. This next to the last payment came due while I was away. The notices came to Senath and Troy Vaughn, my son, got them. If the company sent the notices to me, then Troy would get them. Of course I never saw those notices. All I know was that Troy turned the receipt over to me. The reason I didn't get the notices was because I was away from home. I suppose Troy got them. I told them to turn my mail over to him, and he got my mail. I came home in August. The notices were sent to me just before the first of December, or just after, as the payment was due the first of December. If a notice came before the payment was due, Troy would get that, and if notice was sent out after that, he would get that. The reason I didn't get the notices was because I was not at home. As to the receipt that I have in mind, I came home in August and that was six months or more after the time to pay it. My son turned over the papers to me. He had my receipts and other papers—just other business, not about insurance, other notes. He turned over to me my notes and papers he got all the time, my papers that he would get, and one of the insurance papers. The other papers he turned over to me were the notifying papers. They had written me two or three times. These were from the Insurance Company, two notices that Troy got and the receipt that he got. I kept all three of the notices. I said I got two notices and my receipt made three, and other letters I had got, he just turned them all over to me. I just glanced over the papers to see if it was a receipt and it looked like the rest.

"Q. Do you know who signed the receipt? A. No, sir, I didn't notice.

"Q. Didn't you say in your deposition that Troy might have signed it? A. Yes, sir.

"Q. Then Troy might have signed it? A. He sent it in my name.

"Q. I am talking about him signing the receipt. Troy signed the receipt and turned it over? A. Yes, sir, and that is what I said in my deposition, that Troy might have signed it. I paid that money back to Troy that fall."

The witness further testified on redirect examination that the receipt was signed by Troy. Afterwards, on being recalled, she testified she was meaning to tell the jury it was a receipt Troy gave her when she repaid him the money, and not the insurance receipt, which he signed. Plaintiff did not produce the receipt from the insurance company, for the reason, as she stated, that all her papers were burned in the fire. Her son, Troy Vaughn, testified that he paid the insurance for his mother either in December, 1924, or January, 1925, and gave her the receipt which he received from the defendant, and that he gave her no other receipt for the money she paid him.

This was the second trial of this case, the first trial resulting in a hung jury, and Troy Vaughn was thoroughly cross-examined as to his previous testimony in regard to payment of the premium installment in question. His examination was in part as follows:

"Q. Let's see that we get that right. You say you went to the Citizens Bank and laid down a check? A. Yes, sir. I took that out of my pocket and I told him (the bank cashier, Mr. Daugherty) to write out a check for $30.00 for the Connecticut Fire Insurance Company and he wrote it out. He put it in an envelope and sealed it up and handed it back to me and I mailed it. I was asked about this when my deposition was taken. I remember how I told it then and I told that I had it wrote up as a cashier's check.

"Q. A cashier's check? A. Yes, sir. * * * When I went in the bank I signed a check. I don't know whether he (Daugherty) put that in an envelope or made out another one. I told him I wanted to send that money to the Connecticut Fire Insurance Company and he put a check in the envelope, but I don't know which, whether it was the one I signed or whether he made out another one or what, or whether he put on it `certified' or not.

"Q. You also testified that that was a check on the Citizens Bank, didn't you? A. Yes, sir.

"Q. Are you sure of that? A. No, sir, I couldn't say for sure. I was in the Citizens Bank when I had this wrote out, but I don't know which bank it was on. I don't know which I signed, but I signed one.

"Q. ...