Young v. The Fidelity and Casualty Company of New York
| Decision Date | 04 November 1919 |
| Citation | 215 S.W. 496,202 Mo.App. 319 |
| Parties | W. R. YOUNG, Respondent, v. THE FIDELITY AND CASUALTY COMPANY OF NEW YORK, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of St. Louis County.--Hon. G. A Wurdeman, Judge.
AFFIRMED.
STATEMENT.--This is an action on what is commonly known as a residence burglary or theft policy. The petition is in the usual form setting forth the fact of the issuance of the policy on October 13, 1915, and alleging a loss thereunder on or about the second day of November, 1915, of property of the value of $ 468.65. The petition prays for judgment in that amount together with interest, and also asks that ten per cent penalty be assessed thereon, together with $ 150 attorney's fees on account of vexatious refusal of defendant to pay the loss under the policy.
The answer, as a defense, sets up a provision in the policy to the effect that the plaintiff in the Schedule of Statements attached to said policy represented that the said premises as defined in the policy were occupied by the assured as his dwelling, and that such policy was issued upon the faith of said representation, which representation was false and untrue, and that said assured did not, prior to the issuance of said policy or between that time and the time of the loss occupy said premises as his dwelling.
While there was no formal application setting forth such representation, such fact was stated in the policy, which policy respondent accepted and under which he presented a claim.
The appellant company paid into court for the use of respondent the premium received from the policy, together with interest thereon at six per cent from the date of the policy.
A further defense was set up to the effect that the conditions of the risk were so changed by the respondent after the issuance of the policy as to materially increase the hazard contrary to a provision in the policy. This latter defense was apparently abandoned at the trial, and no further reference is necessary thereto.
The reply was a general denial.
The cause was heard by the court, a jury being waived. Judgment was rendered in favor of respondent against the appellant company for the sum of $ 456.90, with interest at six per cent, together with $ 100 attorney's fees on account of vexatious delay, making a total of $ 566.27.
After the usual steps, an appeal was duly perfected to this court.
While a number of errors are assigned, the main question in this case is whether or not the respondent occupied the premises insured as his dwelling at the time the policy was taken out. This is conceded by the appellant and is the decisive point in the case outside of the question of the penalty portion of the judgment. In the event the respondent occupied said premises as his dwelling within the meaning of the policy, it is conceded by the appellant that he is entitled to recover, and this was the sole ground on which the appellant company denied liability under the policy. This denial took place immediately after the loss and several times thereafter.
The facts disclosed by the record on the question of the occupancy of the premises are these: The respondent Young had resided in the City of St. Louis, and during the summer of 1915 started the erection of a new building which he intended to occupy as a home at 74 Arundel Place, St. Louis County. At the time the lease expired upon the city house, his new home in the country was not entirely completed. On September 18, 1915, it is conceded that respondent Young moved all of his personal property, furniture, clothing, etc., for himself and his family, to the Arundel Place house in its uncompleted state. At that time the contractors were still at work on the house, doing the finishing up on the inside in the way of painting, decorating, etc.
At the solicitation of Cohen, an insurance agent, the burglary insurance was effected on October 13th, following. Respondent Young was a traveling salesman and was away from St. Louis a part of this period. While the evidence is a bit indefinite as to number of times he actually slept at the house between September 18th and November 2nd, the date of the loss, it appears that he was in St. Louis on or about the time the policy was taken out, and while here slept at the house and thereafter while in the city, except upon several occasions, when he stayed with his family who were in the City of St. Louis with a sister of respondent's wife. All of respondent's clothing was kept at the house. On account of the fact that the house lacked the ordinary conveniences in the way of heat and water, the respondent's wife and child stayed in the City of St. Louis at night with the wife's sister. The wife of respondent spent her days at the Arundel Place house. It appeared that at the times the respondent occupied this house at night he slept upon a davenport in one of the upstairs rooms, and on one or two occasions had with him his child. One of the workmen testified that on several occasions he found the respondent at the house in the morning when he came to work. During the period between the time respondent moved his furniture and the time of the loss, the respondent and his family were away from St. Louis for a period of about ten days. It does not appear whether this period was before or after the time the policy was issued. The household goods and clothing owned by respondent were moved into the upstairs rooms of the building on account of the fact that the workmen were still engaged in painting and decorating. There was no heat, light or water in the house at the time, and respondent testified that at the time he was there he used a lamp and an electric flash-light.
The week previous to the burglary respondent had slept in the house once or twice and was there on the Sunday night previous to November 2nd, the time of the loss. The day preceding the burglary, the respondent's wife was, as she testified she had been on every day prior thereto, at the house up until 8 or 8:30 at night, at which time she locked the doors and windows. The next morning one of the workmen noticed a painter's ladder leaning against the back of the house, and upon investigation found one of the upstairs windows had been broken out and the house entered and the goods stolen. Respondent at this time was out of the city, and his wife on learning of the burglary immediately notified the police and afterwards called up the Insurance Company. The same day the agent of the company conferred with Mrs. Young at her sister's house in the City of St. Louis in reference to the loss, and later inspected the premises in St. Louis County. At this time the agent had Mrs. Young make out what is known as a burglary information blank, which gave information in reference to the burglary, stating in a general way the character of property that had been stolen, although not giving this in detail, as at that time Mrs. Young was unable to state exactly what articles were missing. In this paper, which was signed by Mrs. Young and witnessed, the statement is made, that owing to a delay of the contractors they had not been able to get into the house to occupy it.
The appellant company immediately denied liability, alleging as a reason therefor that the house had not been occupied as a dwelling in accordance with the terms of the policy. A few days thereafter when Mr. Young returned to the city he held a conference with the representatives of the Insurance Company, at which time liability was again denied, but before that decision should become absolutely final, it was agreed between the respondent and appellant that the agent of the Insurance Company should submit the matter to the New York office for its final decision. This was done in due course, and the company finally on December 15, 1915, notified the respondent that they would not recognize liability on the policy, on the ground that the building was not occupied as a dwelling within the meaning of the policy. Thereafter in February 1916, the respondent filed the present action.
Judgment affirmed.
George A. Hodgman for defendant-appellant.
(1) Plaintiff is bound to the truth of the material representations of fact or warranties contained in the schedule of statements incorporated in the policy by his acceptance of the same and by presenting a claim under it. Overton v. Insurance Co., 79 Mo.App. 1; Terminal Ice & P. Co. v. Insurance Co., 196 Mo.App. 241; Tiffany v. Insurance Co., 199 Mo.App. 36; Mers v. Insurance Co., 68 Mo. 127; Wolowich v. Surety Co., 136 N.Y.S. 793. (2) The representation by plaintiff in the schedule of statements in the policy that the premises were, on October 13, 1915, occupied by him as a dwelling was material to the risk; the said representation was untrue defendant did not know of its untruth and relied upon its truth in accepting the risk; accordingly defendant was misled and there was never any meeting of minds on the contract and the policy was void from date of issue. Cook v. Insurance Co., 70 Mo. 610; Craig v. Insurance Co., 34 Mo.App. 481; Hoover v. Insurance Co., 93 Mo.App 111; Burnham v. Insurance Co., 75 Mo.App. 394; State v. Jones, 106 Mo. 302; R. S. (1909), sec. 4506; State v. Leedy, 95 Mo. 76; Orr Trucking Co. v. Surety Co., 73 A. 541; Reese v. Fidelity Co., 156 N.Y.S. 408; Bacouby v. U. S. Fidelity, etc., Co., 113 N.Y.S. 20; Axe v. N. Y. Fid., etc., Co., 86 A. (Pa.), 1095; Limburg v. Insurance Co., 48 Am. S. Rpts. 468 (and cases cited); May on Insurance (4 Ed.), secs. 241 and 249A (and cases cited); Herrmann v. Insurance Co. 85 N.Y. 162; Barry v. Insurance Co., 35 Hun, 601, 604-5; Spahr v. Insurance Co., Boardman v. Ins. Co., 31 Ontario Repts. 525. (3) The court should have admitted evidence on the practice...
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