Zackwik v. Hanover Fire Ins. Co.
| Decision Date | 08 November 1920 |
| Docket Number | No. 13717.,13717. |
| Citation | 225 S.W. 135 |
| Parties | ZACKWIK v. HANOVER FIRE INS. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Buchanan County; William A. Utz, Judge.
"Not to be officially published."
Action by Joe Zackwik against the Hanover Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.
March K. Brown, Jr., of Kansas City, and Guitar & Innis, of St. Joseph, for appellant.
Charles F. Keller and Strop & Mayer, all of St. Joseph, for respondent.
This is a suit on a fire insurance policy in the sum of $2,000, covering a Lexington automobile. Plaintiff recovered a verdict for $2,000 loss, $200 penalty, and $500 attorney's fee, and defendant has appealed.
The facts show that defendant insured plaintiff's automobile at St. Joseph, Mo., on March 13, 1919. The car was totally destroyed by fire May 16, 1919, while in a garage in the rear of the house where plaintiff was boarding, and during the nighttime, while persons in the house were asleep. Plaintiff's evidence shows that the cause of the fire was not known.
The defense pleaded was that plaintiff made misrepresentations concerning his automobile when he procured the insurance, to the effect that he had purchased the car in December, 1918; that it was a new car when purchased; that the actual cost, including the equipment, was $2,000; and that the automobile was free and clear of incumbrances. The answer further pleaded that the policy provided that it should be void if the insured should misrepresent any material fact, or if he or his agent should attempt to defraud the company, either before or after the loss, and that "by reason of the aforesaid false statements plaintiff has concealed and misrepresented facts and circumstances concerning said insurance." Defendant further pleaded the provision of the policy that it should be null and void if the interest of the insured should be other than that of unconditional and sole ownership; that plaintiff was not the sole owner of the property; that plaintiff had made false warranties that the car was new when purchased; and that the total cost to plaintiff, including the equipment, was $2,000. It further pleaded that the property was burned by plaintiff and his agent with the intent to defraud the defendant. The reply was a general denial.
Defendant makes the point that there is no allegation in the petition of the ownership of the automobile. The petition alleges "that on and prior to the 13th day of March, 1919, plaintiff was the owner of the automobile," etc. In view of the fact that there was no objection to the petition before verdict, except by a general objection to the introduction of testimony, a method of attacking the petition which is not looked upon with favor, this informal allegation of ownership was sufficient to allege the ownership of the automobile in plaintiff both at the time of the writing of the insurance and the time of the loss. Rodgers v. Fire Ins. Co., 186 Mo. 248, 85 S. W. 369; Cox v. Amer. Fire Ins. Co. 137 Mo. App. 40, 119 S. W. 476; Thomasson v. Mere. Town Mutual Fire Ins. Co., 114 Mo. App. 109, 119, 89 S. W. 564, 1135. Defendant points out that in its motion in arrest of judgment it set forth "that the petition does not state facts sufficient to constitute a cause of action against the defendant," and therefore defendant insists that the petition was attacked at the trial. The attack should have been made on the petition before verdict, and the fact that it was made in the motion in arrest will not prevent the application of the rule that, although the petition is inartificially drawn, if it states any cause of action at all, however defectively, it is good. Bowie v. Kansas City, 51 Mo. 454.
It is insisted that no notice of loss in writing was given, as required by the policy. There is nothing in the record to show that a written notice of loss was given to the defendant, but the record does show that the defendant had notice within 4 days after the fire, and had an adjuster on the ground investigating the loss. While the policy provides that the same shall be null and void unless insured should furnish a sworn proof of loss within 60 days, it does not provide for forfeiture for a failure to give immediate written notice of the loss, although it provides for such notice. It was stated in Dezell v. Fidelity & Casualty Co., 176 Mo. 253, 281, 75 S. W. 1102, 1119:
"There is no forfeiture expressly provided for, and we are not authorized to supply one by construction."
Plaintiff purchased the car secondhand from one Riemer. Plaintiff was asked on cross-examination if he had ever had a telephone conversation with Riemer after plaintiff had talked to the adjuster, and if he had not instructed Riemer in that conversation to tell the adjuster that the car was new when plaintiff bought it, and that he paid $2,000 for it. Defendant contended that plaintiff paid a much less sum for it. Plaintiff denied that he had any telephone conversation with Riemer. Defendant placed Riemer on the stand, and sought to show that he had a telephone conversation with the plaintiff in reference to the car. An objection to the question was sustained. This is assigned as error. The witness had testified that "somebody called me." He did not identify that person as plaintiff, and his testimony shows that he was not willing to say that it was plaintiff, nor was any offer of proof made. We find no error in connection with the matter.
The point is made in reference to the refusal of the court to permit defendant's agent who wrote the insurance to testify that he would not have written the policy if he had known of anything that the plaintiff told him that was not the truth. Prior to this occurrence the agent had testified in relation to the manner of doing business, and the testimony clearly indicated that he would not have written the insurance if he had known of the conditions which the defendant claims were misrepresented by plaintiff. There were certain misrepresentations Pleaded in the answer, and the question should have been confined to those misrepresentations. We think that defendant got before the jury everything that it was entitled to in reference to this point.
Defendant sought to elicit from a fireman, who attended the fire and who had been on the fire department for a year and had attended several fires, whether the fire that consumed the automobile was of incendiary origin. Without passing upon the question as to whether such a matter is one for expert testimony, it is not shown that the witness knew about incendiary fires, or that he had ever seen one. There is no presumption that an incendiary fire is common, and during the time this witness served on the fire department he may not have seen one. The court did not commit error in refusing to allow defendant's adjuster to testify that the fire was "an unusual phenomenon," however expert he may have been in the matter of incendiary fires.
Defendant sought to prove by plaintiff's witness, Addle Klinek, who lived at the house where plaintiff boarded, that plaintiff was so situated in the house that it might have been possible for him to have gotten out of bed and left the house unknown to the other occupants of the house, and started the fire. Defendant asked the witness "if it wouldn't have been possible" for plaintiff "to have gone out the window" and she not heard him. Objection to this question was sustained. We think the court committed no reversible error. Defendant had already shown by this witness that she would have heard plaintiff if he had left the house, for the reason that he slept in the next room to her. From the witness' testimony the jury was able to decide for themselves (if it was material) whether it was "possible" for him to have left by the window and she not heard him.
The court did not err in refusing to permit defendant's adjuster to testify that in his experience with defendant company it never refused to pay a loss which it deemed honest and in accordance with the terms of the policy. The question before the jury was whether defendant's conduct in refusing to pay the loss in this case amounted to a vexatious delay. Its reputation for fairness and prompt payment in no sense was in issue.
Objection is made to plaintiff's instruction No. 1. It is as follows:
"The court instructs the jury that if you believe from the evidence that the automobile described in the policy sued upon and mentioned in the evidence was totally destroyed by fire on May 16, 1919, and that on the 13th day of March, 1919, and on the 16th day of May, 1919, the plaintiff was the sole and unconditional owner of said automobile, your verdict will be for the plaintiff, unless you further find and believe from the evidence that at or about the time the policy sued on was issued plaintiff represented to defendant's agent that said automobile was purchased by plaintiff in December, 1918, or that said automobile was new when purchased by plaintiff, or that said automobile, including equipment, had actually cost plaintiff $2,000, or that plaintiff made some misrepresentations in his proof of loss, introduced in evidence, or unless you find and believe from the evidence that said automobile was burned by the plaintiff."
It is insisted that the instruction assumes " the payment of the premium, the giving of notice of loss, and the sufficiency of proof of loss. The payment of the premium was not disputed. Failure to give notice of loss, as we have already stated, did not void the policy, and defendant during the trial admitted the receipt of a proof of loss. There was no issue as to its sufficiency.
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