Yeargain v. Importers & Exporters Ins. Co.

• Decision Date: 23 April 1937
• Docket Number: No. 5635.,5635.
• Citation: 104 S.W.2d 793
• Parties: YEARGAIN et ux. v. IMPORTERS & EXPORTERS INS. CO. OF NEW YORK.
• Court: Missouri Court of Appeals

104 S.W.2d 793

YEARGAIN et ux. v. IMPORTERS & EXPORTERS INS. CO. OF NEW YORK.

No. 5635.

Springfield Court of Appeals. Missouri.

April 23, 1937.

Error to Circuit Court, Jasper County; Ray E. Watson, Judge.

"Not to be published in State Reports."

Action by Mr. and Mrs. J. D. Yeargain against the Importers & Exporters Insurance Company of New York. Judgment of dismissal, and plaintiffs bring error.

Reversed and remanded.

Kelsey Norman and Alfred K. Lee, both of Joplin, for plaintiffs in error.

Grover C. James and Robert E. Seiler, both of Joplin, for defendant in error.

SMITH, Judge.

This case comes to the writer on reassignment. This is an action on an automobile theft insurance policy issued by the defendant, the Importers & Exporters Insurance Company of New York, a corporation. The petition alleges that a certificate evidencing that plaintiffs were insured under a certain master insurance policy was duly issued, and the automobile of the plaintiffs was insured against loss by fire, theft, pilferage, and transportation to the body, machinery, and equipment; and that the defendant also agreed that any such act of the plaintiffs in recovering, saving, and preserving their automobile, so insured under said master policy, should be considered as done for the benefit of all concerned, and where the loss or damage suffered constituted a claim under the policy, then all reasonable expenses thus incurred should also constitute a claim under said policy.

The plaintiffs instituted this action in the January, 1935, term of the circuit court of Jasper county. At said term of court, the defendant filed a motion to dismiss plaintiffs' cause of action on the grounds that plaintiffs were nonresidents of the state of Missouri and had not given security for payment of costs. Thereafter, at the same term, plaintiffs filed a bond for costs, which was duly approved. By leave of court, defendant was given until on or before the 2d day of February of said term of court to plead, and on that date the defendant filed a motion to make plaintiffs' petition more definite and certain.

Defendant's motion to make plaintiffs' petition more definite and certain was considered by the court at the April, 1935, term of said court, and said motion was sustained. Plaintiffs refused to plead further, and thereupon the court entered of record an order dismissing plaintiffs' cause of action, and rendering final judgment for the defendant for its costs expended.

Thereafter plaintiffs filed in this court their application for a writ of error directed to the circuit court of Jasper county, which said writ of error was granted, as appears of record in this court.

Defendant's prayer, contained in its motion to make plaintiffs' petition more definite and certain, is in words and figures as follows:

"Wherefore, defendant moves that the plaintiffs be required to make said petition more definite and certain and particularly that Paragraph 3 on page 2 of said petition be made more definite and certain by alleging the place where it is claimed that said automobile was stolen and pilfered, and also by alleging the name of the person or persons claimed to have stolen or pilfered said automobile, if such facts be known by plaintiffs, and if not known by plaintiffs that such lack of knowledge or information on the part of plaintiffs be set forth in said petition."

We deem it not necessary to quote the petition in full, but commencing with the paragraph attacked by the motion to make more definite and certain, we quote the remainder of the petition in full, signature omitted, as follows:

"Plaintiffs state that on or about the 12th day of November, 1932, and while said policy was still in full force and effect, said Chevrolet coach, the property of plaintiffs and the automobile insured by the defendant as aforesaid, was stolen and transported away from the plaintiffs' possession, and the equipment thereon pilfered, and that plaintiffs suffered considerable loss and damage which did not happen or result from any of the causes excepted in said insurance policy.

"That the actual value of plaintiffs' automobile at the time it was stolen and transported away was at least five hundred seventy-five ($575.00) dollars; that by reason of aforesaid theft, transportation and pilferage of plaintiffs' automobile aforesaid, plaintiffs have sustained loss and damage to their automobile in the amount of two hundred fifty ($250.00) dollars, and that by reason of expenses incurred by plaintiffs in recovering, saving and preserving their automobile as described aforesaid, and by virtue of the provisions of said policy allowing the incurrence of a reasonable expense therefor, the plaintiffs have suffered loss and damage in the further sum of thirty-five ($35.00) dollars.

"Plaintiffs state that they have duly fulfilled all of the conditions of said insurance on their part, that they gave immediate notice to defendant of the theft of their automobile so insured and that they also notified the police as provided in said policy.

"That within sixty days after the theft of the automobile herein first described and the resulting loss and damage, plaintiffs tendered to the defendant due proof of their loss and damage as provided in said policy, but that defendant refused to accept said proof of loss or to determine the loss or damage to plaintiffs by reason of the theft, transportation and pilferage of their automobile so insured and reasonable expenses incurred in recovering same, and also refused to appoint a disinterested appraiser to determine the loss or damage suffered by plaintiffs as provided in said policy.

"Plaintiffs further state that they have made repeated demands upon the defendant, and that they have offered to furnish all proofs of loss and damage required by the defendant of the plaintiffs under said policy, that plaintiffs have offered to submit to a disinterested appraiser the determination of the amount of their loss and damage, but that defendant, in absolute contradiction of the terms and provisions of said policy of insurance without any cause and excuse whatsoever, has failed to pay the plaintiffs the amount of loss so suffered by them, or any part thereof, and the defendant continues to refuse to pay the plaintiffs the amount so due them without any cause or excuse whatever, and solely for the purpose of vexatiously delaying the plaintiffs in recovering and receiving satisfaction of the amount due them.

"That, in consequence of the failure of the defendant to pay the plaintiffs the amount due them on account of said loss under said policy, the plaintiffs have been required to and have employed attorneys to recover said loss for them and that because of such vexatious delay and by virtue of section 5929 of the 1929 Revised Statutes of Missouri [Mo.St.Ann. § 5929, p. 4515], the plaintiffs are entitled to damages of twenty-eight dollars and fifty cents ($28.50) and a reasonable attorneys' fee of one hundred ($100.00) dollars.

"Wherefore, plaintiffs pray judgment against the defendant for the sum of two hundred eighty-five ($285.00) dollars with the legal rate of interest thereon from January 13th, 1933, and in the further sum of one hundred twenty-eight dollars and fifty cents ($128.50) penalty and attorneys' fees and for their costs."

The trial court sustained defendant's motion to make more definite and certain. The plaintiffs excepted to the court's ruling and failed to plead further. Thereupon the court adjudged that plaintiffs' cause of action be dismissed.

The one assignment of error is stated as follows:

"Plaintiffs in error assign error, in that the lower court sustained the defendant's motion to make the petition more...