Young v. Queen Ins. Co. of America

• Decision Date: 11 March 1918
• Docket Number: No. 2190.,2190.
• Citation: 201 S.W. 940
• Parties: YOUNG v. QUEEN INS. CO. OF AMERICA.
• Court: Missouri Court of Appeals

201 S.W. 940

YOUNG v. QUEEN INS. CO. OF AMERICA.

No. 2190.

Springfield Court of Appeals, Missouri.

March 11, 1918.

Appeal from Circuit Court, Laclede County; L. B. Woodside, Judge.

Action by Minnie Young against the Queen Insurance Company of America. Judgment for plaintiff, and defendant appeals. Affirmed.

I. W. Mayfield & Son, of Lebanon, for appellant. John S. Haymes, of Buffalo, and L. C. Mayfield and A. W. Curry, both of Lebanon, for respondent.

FARRINGTON, J.

Defendant, a New York corporation licensed to do business in Missouri, through its local agent at Lebanon, Mo., on September 23, 1916, issued a policy of insurance against fire for one year to the plaintiff in the sum of $1,800 on a stock of millinery and $200 on store fixtures. On January 29, 1917, a fire occurred, and, negotiations for settlement failing, plaintiff brought this suit, asking $1,800 for the loss to the stock of goods and $100 for damage to the fixtures and a reasonable amount as her attorney's fee. The jury returned a verdict for plaintiff for $1,575, of which $75 was for vexatious refusal to pay. Defendant has appealed, urging insufficiency of the petition and instructions. Appellant did not demur to the petition, being content to file a general denial, and then, at the opening of the trial, objected to the introduction of any evidence for the reason that the petition failed to state facts sufficient to entitle plaintiff to recover, which was overruled.

Appellant claims that the petition is fatally defective because it does not allege that the property was destroyed in the county where suit was brought, and because it fails to allege that the property at the time of the fire was in the building in which it was insured. By an examination of the petition one could infer that the insurance was written on property situate somewhere in the state of Missouri, but beyond that the location of the property, either at the time the insurance was written or at the time the fire occurred, is neither stated in the petition nor is there a syllable of any kind in the pleading from which an inference could be drawn as to where it was.

Appellant, in support of its contention that the petition is fatally defective because it does not allege that the property was destroyed in the county where suit was brought, cites Thomasson v. Insurance Co., 114 Mo. App. 109, 89 S. W. 654, 1135, Id., 217 Mo. 485, 116 S. W. 1092, and Hilburn v. Insurance Co., 129 Mo. App. 673, 678, 108 S. W. 576, and, in support of its contention that the petition is defective because it does not allege that the property at the time of the fire was in the building in which it was insured, cites Todd v. Insurance Co., 1 Mo. App. 472, Wright & Son v. Insurance Co., 73 Mo. App. 365, and the Hilburn Case, above referred to.

Addressing ourselves to the first of these contentions—that the petition fails to show that the cause of action accrued in Laclede county, and that therefore the circuit court of Laclede county was without jurisdiction to try the case—we may say that the reply to it, which we think is conclusive, is suggested in neither the brief of appellant nor of the respondent. It is that section 1754, R. S. 1909, has no bearing on a case wherein the defendant is a foreign insurance company licensed to do business in this state, and the fact that defendant in our case is a foreign insurance corporation licensed to do business in this state is alleged in the petition, and likewise is alleged in the pleading of the defendant. Section 7042, R. S. 1909, makes every foreign insurance company which has complied therewith a resident of every county in the state for the purpose of a suit against it. Meyer v. Phcenix Ins. Co., 184 Mo. 481, 83 S. W. 479. The Supreme Court is unanimous in its holding that section 7042 provides that a foreign insurance corporation which has complied with our laws permitting it to do business in Missouri may be sued in any county in the state. Gold Issue Mining & Milling Co. v. Pennsylvania Fire Ins. Co., 267 Mo. 524, 184 S. W. 999. See, also, Meyer v. Phœnix Ins. Co., 95 Mo. App. loc. cit. 725, 69 S. W. 639; Meyer v. Phœnix Ins. Co., 92 Mo. App. 392; Rodgers v. National Council, 172 Mo. App. loc. cit. 723, 155 S. W. 874; Citizens' State Bank v. Berry, 79 Mo. App. loc. cit. 474; State ex rel. St. Joseph Lead Co. v. Jones, 270 Mo. loc. cit. 235, 237, 192 S. W. 980; Stone v. Travelers' Ins. Co., 78 Mo. 657.

In passing, we may call attention to the case of Thomasson v. Insurance Co., 114 Mo. App. 109, 89 S. W. 564, 1135, and the same case decided by the Supreme Court, 217 Mo. 485, 116 S. W. 1092, cited by appellant. That case involved a town mutual insurance company organized under article 12, c. 61, It. S. 1909, and section 7167, R. S. 1909, provided the venue of suits instituted against such insurance companies. That case has no bearing upon the question here. The opinion in the other case cited by appellant (Hilburn v. Insurance Co., 129 Mo. App. 673, 108 S. W. 576), in which it does not appear what kind of a fire insurance company that defendant was, whether local or foreign, based the statement found on ...