Block v. United States Fidelity & Guaranty Co.

op 278 316. Missourx, Vol. SUPREMECouet by definitely fixed, which not or not either have been fixed statute was named. all alone would include salaries where the maximum salaries, to fix right by general That Legislature statute has the by ap- an beyond means of question, is has it to do so but propriation act? We think not. in- practice

As if cases, has been observed well-reasoned legislation corporating general appropriation an bill character in questionable, if allowed, ill-conceived, not should be all then sorts vicious, legislation too, that proposed, threat, with the could be not defeated. appropriations assented would be passed, the possibilities legislation and this court’s such condemnation thereof well Tolerton are illustrated the case of State ex v. rel. Gordon, 236 Mo. 142, following as well from States: as the cases other v. Carr, Greg, State ex rel. 13 L. R. 29 A. Atl. 297. Com. Our Constitution, Section Article one IY, is the certain safe- guard against strictly such distracting possibilities and should be followed. hold, therefore, We Appropriation that Section 100 of the Act, Constitution, under our void, is unconstitutional and' and it follows our peremptory granted. writ of should mandamus be question remains, invalidity does the 100 said Section render Appropriation entire Act void? We hold that it does not. It well legislative settled that a may in part, leaving act be void good remainder a and valid part statute where valid separated from part that is void. ex rel. Gordon, [State l. c. Taylor, State ex rel. v. Mo. 474.]

Our alternative is, therefore, writ permanent. made It is so ordered. All concur, except and Ragland, Graves absent. JJ.; Fidelity ARNOLD Block, Appellant, v. United States Guaranty Company. Banc, Court en December 1. EXTENT OF Appeals: Disagree- REVIEW: Transfer Court ment on Notwithstanding judges One Point. Appeals of the Court of unanimously agreed upon points except in their decision in the ease point burglary one whether in an action on a insurance was entitled to recover fees defendant’s refusal vexatious payment, point judge ground to make one dissented on the contrary court, the decision was to a former decision this and there- requires, case transferred court this as the Constitution point, this court will restrict its consideration of the case to that one case, purposes, just will but consider whole for all as if had reached appeal court on direct from the circuit court. 2. bal Assurance. that “no INSURANCE: to Different BURGLARY Removal Place: Waiver: Ver- Notwithstanding insurance declared change valid made in this shall be unless endorsement 1926} Bloce v. United States Fid. & GuaR. Co.

duly executed insurer,” officer of the representative, an authorized powers virtue of conferred company, may him have au- and such au- thority thorized insured provision to waive such verbally; and to bind risks representative having power, having been notified goods removal of his place stock of from the named in the policy upon verbally place day to a different removal, having there- location, bound the risk at .the new the insurer became liable burglary to the amount of the loss. Agent: -:3. General Power Policy. gen- to Waive Provisions of A agent, signs eral policy, who a renewal certificate and riders attached thereto as representative the authorized company, of the insurance and supplied by company who is the policies, with blank forms of endorsements ready and riders delivery for issuance signed by and him, when and to premiums paid upon policies whom by policy, whereby are company, authority issued the has change to waive a or forfeiture of company the the bound, notwithstanding becomes contrary provisions policy. in the Telephone 4. -Notice of Removal: testimony Assurance. Positive that notice of the removal of place the insured from the named in the burglary policy place given by to another telephone company’s to the representative reply authorized and given that assurance was that the new issued; established day location would be covered permits from that and removal would be giving that this method of notice of removals was the usual and practice representative’s office, and custom in the and that duty telephone it was operator the of the messages to take down such and they right see that office, reached the subaltern in the a makes case for jury question the given, whether the notice and assurance were and finding they of the that were is conclusive on that issue in the appellate court; undertook office, person representative’s and whether the in the office who message proper person to receive the delivered it to the in the through neglect it, or immaterial, being failed to deliver employee agent representative and of the her act was his act. Incurring Expense. 5. —--:-: Waiver: com- Where an insurance pany expense comply induces the insured incur to trouble and in order to provisions policy right in the it waives its of forfeiture or to refuse payment secretary inspector burglary of loss. Where resident and of company place risks of the visited the to which the insured had removed only day burglary, request his business a or two after a and did at the so company’s testimony representative, authorized the insured time, inspector required changes premises at that certain in the to be' they right” made and stated if all were made “the risk would be nothing company if were to that do not made “there would be else for the get risk,” changes made in com- but to off of the and that were question pliance requirements, expense, with the at considerable makes a only jury, company whether the had notice of the the for the on the issue occurred, burglary removal issue whether a second thereafter but also on before inspector required changes made and whether be to finding by they jury waived a compliance requirements, with the and a were made in holding company a is a sufficient basis for for the insured place policy a provision effect that a removal to new in the to the equivalent a forfeiture unless the consent of would be to of business policy. company endorsed on the were An insurance of Premiums. -: Cancellation: Return 6. Waiver: right premiums it company and to which has no time retain cannot at same policy the in- has forfeited. Where been heard to insist policy cancel the at company to itself the surance reserved notice, there- delivery registered cancellation mail of a or time eight policy premium, had months and the pro-rata earned retain a burglary at the time of the months seven first run the time of the SupRemb op Court You. second, company policy and the did offer return the un- not cancel the or premium, although burglary, promptly earned it of the first notified policy, regardless it waived a forfeiture of the the time when learned goods place of the removal in the of the stock from the mentioned .policy place burglaries occurred, to the the first where the whether before day a two thereafter. Pleading: Reply. Allegations performance 7. BURGLARY INSURANCE: proof policy the terms of authorize an insurance are sufficient to Allegations upon, allegation express waiver the relied without an of waiver. goods burglaries place occurred insured moved his where the place provisions are that the to such extended relating proof provisions sufficient to authorize of waiver of the removals, unnecessary company’s reply answer that make required change in the manner location was not authorized filed, alleging waiver, policy; reply is immaterial. Burglaries: 8. -: Aggregate Successive Amount Recoverable. Under peculiar language on, by which, among sued other in- suring clauses, company agreed indemnify “to the assured in the $3,000 amount of for all direct loss taking the felonious merchandise premises,” within the insured was entitled to recover the value feloniously of the merchandise burglaries taken at two successive within year the term the one covered neither of which exceeded $3,000,' aggregated but both of which $3,000. a sum in excess of meaning policy for each of is protection that the insured should have the to $3,000 extent of burglaries several might successive which oc- during period the cur covered meaning it. that although And is its “any provided payment further der this of insurance that damage to the assured for loss or un- constitute, policy payment shall a in reduction of the total amount provided policy,” policy provide this since the did not for “total a amount of insurance” in the arising event of successive losses out taking merchandise, except liability of single to limit for each such $3,000, may to and relating loss these words well refer to other clauses to n taking money securities, the of and narcotics and articles in show win- dows in which alone “the specified total amount of insurance” is to limited “during policy period.” amounts the against Company. --: --: -: 9. Doubt Resolved Where the ambiguous policy question insurance is whether the insurance $3,000 single burglary liability ag- for each or the is limited to an $3,000 gregate burglaries occurring during policy amount of for all period, capable meanings, fairly susceptible and is constructions, of two isor of two dif- meaning ferent and construction most favorable to though adopted applied, meaning will and the insured be even another company, been intended and that have company, for the reason that insured, policy. and not the author of the Lengthy. number, length 10. minute Numerous and INSTRUCTIONS: and given error, they fairly detail of instructions are not reversible clearly proper jury. fact and submit the issues of to be decided Scope Employment: Question Agency: 11. -: Law. An instruc- submitting employee question repre- an tion whether of the authorized sentative.pf receiving company, telephone the insurance over the a ver- place a different and in notice of the insured’s removal to business bal issued, stating permits acting would be was usual that removal duty representative, while in his office and course of business of “within the scope employee’s duty,” apparent does not submit likely phrase law; is not clear or is question to if defendant thinks it is its and definitely duty request misunderstood, an to instruction more defining it. Block United States Fid. & Guar. Co. Pay: Attorney INSURANCE: Vexatious Refusal to Fees. Vexatious pay refusal to an insurance is not to be deduced from the mere fact against that a denied ises company. verdict is good Where the faith liability policy covering burglary because it had no prem- from the burglarized, and conflicting upon the evidence is the issue whether notice of removal place burglarized given merchandise to the was company’s representative prior burglary to the first and whether such the. consequent notice and the assurance amounted to waiver of the conditions relating premises, to removals to these the insured is not attorney’s entitled burglary. fees for that where But the resident secretary inspector burglary company, risks of the at the direction of its representative, authorized burglary, place after the first visited the thereto, therefore knew of the insured’s removal and the burglarized, company did premiums, not cancel the or offer to return the when to second declined, occurred within a month or two thereafter a. proofs risk, receive of loss and denied connection with the in- attorney’s pay sured is entitled to recover fees for vexatious refusal to burglary. loss occasioned the second Pleading. Allegations, language 13. -: --: in the of the statute (Sec. 6337, 1919), vexatiously refused, R. S. that “defendant and still vexatiously refuses, pay plaintiff loss, part,” said in whole or in prayer attorney’s fees, “for the sum of which $1250 said coupled.with attorney’s bringing prosecut- sum states is a reasonable fee for ing which suit,” conclusion, allegations fact, are not a statement of a but sufficiently apprise pay defendant its the loss refusal was excuse; probable particularly without reasonable or cause or are such allegations attorney’s they assessing sufficient after verdict an fees where previously were not attacked. Damages. specif- 14. -: -: Verdict: No the instruction Where ically jury they told must find that the refusal insurance company an pay they vexatious could allow loss was before attorney’s fee, attorney’s allowing was an affirmative fee verdict they vexatious; finding returned no the refusal and that damages, error, can- may defendant verdict for if technical was error of which vexatious, complain. Having not found that refusal fees, damages but are return a verdict both for compelled to return a verdict for both. The -: fact 15. -: Less Amount than Asked. Verdict for the amount of the insured’s claim of the amount sued for exceeds loss and verdict, by by not proof does company and determined the the loss as shown vexatious, pay where the demonstrate that the to not refusal any amount; liability placed and' ground, in refusal on such but denied its its no burglary, so, particularly after he testified where the insured voluntarily part thereupon reduced goods, a he recovered of the stolen comparison total value, insignificant to the in his loss, their which was claim amount sued for and represented the difference between and which single pay upon and definite Having a refusal to the verdict. based its statutory from ground, company position relief to claim is in no ground. penalty a different vexatious refusal for court, Separable This Items. Directions: Reversal with 16. JUDGMENT: under the judgment as 1919), may such (Sec. 1514, enter here statute R. S. with directions given, cause ought remand the court have the circuit to judgment. in the suit on designated Where a to the circuit court to enter a burglaries, insured separate covering two insurance each, together with at- occasioned the loss the amount of recovered torney’s count, attorney’s the first on fees count, item on each fees Supreme 282 Term,, Court oe You. being being separable judgment sustained from the rest of the and not proof, may eliminated, court to the trial and the cause be remanded judgment to enter in the verdict. for the other items included ntí ^[0] oo p CO P CO'*» ^[*] (cid:127) <x> o'" (0 o'3 ^[2] g §’ ic Hd-Ss'O MS >cj" ’ 8 n S” “ ®> O 2 CT y —01 co - crc . P§? £. o -a ¤ %s. K a> o M c© ci p to. - ^{[*] [1]} So tjH- 3.e.&i0.'?® e fe it „ apoma ^[3] - OlS g ^{[3] [3]} cad? 2 o zz.'* n o> Lpx ”So® OhmS §m-CTp! g 3 .“ m D- om>a -oi * ¡Z2 s n a - (cid:127) » 3 i-*1? M (cid:127) 2 1_‘Ki co tí m ^ ^[00] <£> -O ^[05] CR [-I P Í-1 *< ~ ^ CO ^ ^{[3] [*]} CO tí ^[*] to ^[05] HpnCO^ H-1 ^{[*] [07]} c© ^{[05] [*]} CO m- to ^ ^ * "* * "* - ^ £ CÜ ^[2] H-j rn o p MtO“ (cid:127) m®s, ^a a toe p s'3 v tom bo to p as”' 2 g- .S ST. c* or- h r_ £ ^[07] egy , > in o » . tí tH - . ^ Cr- „ OOH ~ , tH -o J 3 P<rjO „CO SwtNi CO ¿ O . ^ tí CO (cid:127) - to" iX 00^3 ~ o .2 -o OO co c\i r-1 f» § , OO Appeals. City Court Kansas Transferred directions). (with REMANDED AND REVERSED ap- for Dn/puy G. Warrielc R. E. Talbert Rosenberger, J. C. pellant. in its time, Respondent contends, the first

(1) company allegations plaintiff’s contained that the brief filed this court for, sued petition losses vexatious refusal defendant’s con- of mere tried, the statement and on case was are which the recovery of support a and hence insufficient to pleader, clusion of the contention, S. 1919. To this attorney’s 6337, R. fees under See. open is (a) This contention there áre several answers: trial court petition company because made attack on it otherwise, (b) allegations Also because motion, demurrer or virtually sufficient, hold would be petition and to otherwise were statute, (c) company salutary Also because nullify theory trial court tried the case attorney’s and it bound properly fees issue recover permitted theory. of value of the evidence go objection exception. In case fees in without alleged insufficiency petition is well settled that such verdict, party heard, not be deemed cured' and the will after sufficiency general allegation first attack time, appeal to recovery Co., which a has had. Geninazza 252 been v. Auction Bottling 417; Machinery 142; Simpson 273 Mo. S. W. Co. v. 526; Ridge, Lopez v. S. 261 Wells, 547; 237 W. Tebeau v. Mo. v. 37; 485; v. Hines, S. W. Thomasson Mercantile 217 Mo. Wyler 474; App. 150 Mo. Ratican, Zbaren, v. Dieter App. McQuade Railroad, Packing v. Am. Hecfuss S. 99.; Wells, Dickens v. 245 W. 563. S. W. is in very language statute, and the rule is well that it settled plead liability a proper language under in the statute Cye. 115; 153; 31 Patrick v. Haskell County, statute. 105 Kan. Printing 71 Ill. Co., App. 636; Rock Co. Island v. v. Hamil- Jarvis 59 ton, 574; Klein, Supp. 16 v. N. Y. charge Wis. Rosselle 94. United States Fid. & Guar. Co. 283 Block v. “vex- by company’s refusal to was made that the plea clearly apprised fact, atious” was of the ultimate upon charge its re- that it was called to defend the defendant out just pointed or excuse. To have how fusal without cause was faith, require would be to company’s wherein refusal ivas bad evidence, proper. allege which is never Mc- matters of Quillin’s 282; Pleading Practice, McGee, v. 153 sec. Wilkerson App. Donaldson, 92; v. 343; App. Mo. v. Coleman Hillbrant 231; 66 61; Eagleton App. 149 Mo. «Treeee, App. Kabrich, Mo. v. Mining Co., company having v. 220. tried the Stainer 166 Fed. good theory case that the faith of its refusal below having issue, issue, permitted it will not tried to abandon repudiate theory appeal. Co., Palmer Shaw v. Transfer 209 882; Simpson 528; Machinery S. Wells, W. 237 S. v. v. W. Bottling Co., 142; Richter, 691; 273 286 Mo. Allen Co. v. Nat. Mo. Fry, 519; Osagera Shaff, 124; Hayes Board v. 237 S. 240 S. W. W. City, 655; 294 Kansas Mo. Lbr. Co. v. 247 Powell, LaCrosse S. 1022; W. 212 Co., App. (2) being Harris v. Mo. Weber Motor It by immediately admitted after the first question learned that had moved from the location de- scribed in policy, making and that he poli- claim under the cy, asserting instead of forfeiture of the pre- retained the mium and policy, thereby acquiescing failed to cancel the in the change of location thereby and treated the as still in force, and estopped asserting itself from afterward that it had not consented to removal, irrespective and this any question authority agents to McIntyre consent to the Co., removal. v. Ins. 131 App. Mo. App. Rhodus v. Ins. Mo. Union Trust Ins. Co. v. App. 362; Mo. v. Ins. App. 198; Jeg- Mo. Hlarland glin 367; Dyer v. W. O. 202W., App. Co., 244 v. Ins. S. W. 964. (3) deprive plaintiff It was erroneous to of his verdicts for his two merely losses right because statutory he stood his attor-. reasons, ney’s fees allowed jury, (a) and this for two Be- cause the evidence warranted the fees, assessment of (b) otherwise, .Because the fact were the issues in plain- involved tiff’s entirely separate recover his losses were and distinct pay, the issue of separately vexatious refusal to and were found just and there was no reason depriving plaintiff his verdicts for the fully amounts of his approved losses—verdicts merely the trial disapproved because the trial court jury’s court— finding independent issue of vexatious pay. refusal to respondent. R. Ball E.

(1) The errors committed the lower court in the admission of by appellant evidence offered as well as of instructions asked him SupReme op 284 You. 316. Court given by justified grant- completely order the court that court’s ing a an affirmance of trial, logically new and would lead to appeal, (a) order on this motion a new trial served Because the point (b) Toll, 281 W. 41. Because abundantly. Carnie v. S. objections all to instructions preserved motion for a new trial given ex rel. refused and the excessiveness of the verdict. State only Smith, (c) Railroad v. 172 not was the Mo. 446. Because right trial granting trial, Judge court in but Tremble new asking Appeals certify the Court of the cause to this court. (d) Allen, State ex rel. Ins. v. 303 Mo. 608. Because sec- Co. reply plaintiff’s petition ond really amended seeks to amend con- tradicting same, for it is a suit on written instrument which does not say reach and itself that it intended to cover the address on Trafficway, reply discharge to have said amended a func- tion of an petition, amendment to the which it cannot do. Moss v. Fitch, 212 484; 1237; 1235, Mo. R. S. Spen- secs. Crawford v. cer, 36 App. 82; 179; Mo. 72 Step Livingston, App. v. Mo. Jackson v. Powell, 110 App. 252; Mining Mo. Hill Co., Mohney v. 119 Mo. Reed, App. 40 (e) Mo. 99. reply Because said amended seeks for inject the first parol time to an issue which is made the issue main here, not petition limited to the on which is founded, the case thus appellant gets hearing on a action cause of mentioned the petition, ignoring regard statute to a that it shall reply "consist” and be limited to "the new matter in the answer.” R. S. Fitch, sec. 1235. (2) Moss v. 212 Mo. 503. The court erred in giving plaintiff’s request at 2 Instruction because said instruction erroneously assumes, proof without thereof, witness Dora L. phone Hutchinson employee talked over the to some Sons, of McGee & agents of defendant, when the witness Hutchinson failed and refused identify person being with whom she talked employee as an (3) McGee & Sons. Because court refusing give erred in at conclusion of the evidence defendant’s instruction na- evidence, ture of a demurrer to the (a) For the reason that there was no contract 2433 Traffieway. McGee Street (b) For the further reason that the court could not make a con- tract as a matter of law parties, (c) for the For the further reason that a reply cannot anything state except what up is set in the an- swer, reply and a cannot serve the function of an amendment to the plaintiff’s petition. (4) unjust It is to construe this policy by examining parts printed those which, matter what- ever were mean, intended to no application, have or, Judge says, question "no relevancy to the liability” here. Casner Goode Casualty App. 354; 116 Mo. Fidelity Michaels v. Cas. (5) 128 Mo. App. question 18. If arising goes to the considera- original tion agent can waive anything which will Fid. & GuaR. United States Block v. case,, there policy. In such validity give have the effect App. Co., Mo. v. Ins. Graham consideration it. would be no Rudd, App. 357; McKee v. Cas. Banks v. Clover Leaf burglary losses, alleged SEDDON, for two C. Action to recover burglary pol- open stock by plaintiff, to have been suffered 1919, by icy beginning 20, on November issued for a term defendant year termi- ending year thereafter, and one and for another renewed counts, in two nating 1921. The is cast 20, on November burglary loss. separate each based and distinct dealer au Plaintiff, mentioned, at the herein was retail times 1919, purchased he September 5, tomobile tires and On accessories. doing Meyn, Fritz and stock of merchandise one business Lotta Avenue in Kan Company, business as Miles Tire at Grand by plaintiff sas Missouri. on taken out on City, sued was 1919, through Brown, Barnum, Mann & about November insur agents City. ance It on Kansas is executed behalf defendant company by Bland, president, Bland, John R. and R. Howard secre tary, countersigned City, Missouri, by and Thomas McGee Kansas Son, representative. & On or 4, 1920, its authorized about March plaintiff trade-name, discontinued the use of the Lotta Miles Tire changed and rider, the name Block Company, Company, Tire and a countersigned by Son, Representa McGee "Thomas & Authorized tive,” reciting: issued hereby was "It defendant understood and agreed that name of Assured under this is corrected to read as Block, Doing follows: ‘Arnold business as Block Tire Com ” pany.5 May On or 7, 1920, plaintiff about moved his merchandise place and of business from Grand Avenue to 2307 Grand Ave nue, and day a rider dated issued defendant, counter signed by Son, "Thomas McGee & Representative,” Authorized trans ferring policy so as to cover the latter location. expiration Prior to the original the term the policy, L. S. one doing

Davis, business & Company, as Davis also an agent insurance City, requested plaintiff Kansas privilege of renewing the burglary policy year. for another Plaintiff testified that "he [Davis] my said that he could write insurance well anyone as else; that he was an agent of the same fact, and could place my company. insurance Q. with the same What company did he refer to or mention ? A. United States Fidelity Guaranty Com- pany. get said He that he would like to the renewal of might he make the commission gave my on it. I permission to policy.” write the A renewal certificate thereupon issued ‘‘ defendant, countersigned Son, City by at Kansas Thomas McGee & Agent,” Authorized continuing said in force from November op Vol. Mxssouri, COURT SUPREME premium aof 20, 1921, in consideration 1920, to November duly delivered The renewal certificate was $205.50. amount Davis the paid thereupon L. Plaintiff

said S. Davis. commission Davis’s premium, less $205.50, annual which premium, to Thomas paid in turn procuring policy, Davis the renewal of the representative. Son,& authorized McGee defendant’s pol- the renewal 15, 1921, On March months after about four his merchandise icy during moved period, the renewal Traffic- place to 2433 McGee 2307 Grand Avenue business from question On way, burglaries in occurred. place at which latter both day location, plaintiff instructed his book- he moved to the new notify Mr. Davis of the keeper secretary, Murphy, Miss Alma tel- Davis on the Murphy removal. Miss she called Mr. testified that “I him about the ephone, removal, notified him of told policies, burglary, and I wanted both the fire and to know covered, said, ‘Yes, places we would be at both transit. he ” you Yes, protected.’ day, Dav- covered, you are On the same are bookkeeper, is’s Miss Dora was instructed Davis to Hutchinson, proper see that the of removal were attended to. She testi- notices “I up fied: office, called & Sons’ and said I wanted report Company, lady the removal of said, the Block Tire and the ‘All right,’ I said, pencil and you paper upon and which to ‘Have ’ make the notation, had, I gave particular and she said she and here, number G., U. S. and I said, F. and ‘Remove to McGee Trafficway,’ they and asked would be covered from today, she assured they me that permits would that the would be issued.” Witness further telephone testified that the notice removal to Mc- ’ &Gee given Sons pursuance officewas in customary of the usual and practice respecting such Upon receiving removals. assurance from person the at office, McGee & Sons’ Miss Hutchinson amade written thereof, memorandum spindle which she in filed Davis’s office and which put was in evidence at the trial.

One J. C. Horn employee was an of Thomas McGee & Sons, defend- ant’s authorized agents, charge burglary department. He testified that it was a matter of common daily occurrence and routine persons that office for having dealings of business with defendant company to call on telephone give of removals, notifications changes or name, changed or other conditions which required policies; amendments of that it is contemplated, when a is is- sued, that may removals place, take or other conditions there- arise, after calling for amendments policy; that person at- tending telephone switchboard in the office of McGee & Sons re- ceives such they calls as in, come and that duty it is of the switch- operator board party connect the calling person in office of McGee & charge Sons having particular of the department Fid. & ÜNIted States Guar. Block v. 19M\ duty switchboard is the involved; that it kind of insurance or in the absence telephone message given on the operator, when par- having charge of the person department or the the head message and see down the business, take ticular item insurance such were message and that party; reaches the switchboard, operator. Mr. Horn general given instructions of removal of message, or notice having denied himself received wit- produced as plaintiffs Defendant business, from Davis’s office. Sons, being a & one employees Thomas McGee nesses two women burglary in the writer operator switchboard and the other a nothing they about department, and knew both testified receiving remember message having and that did not been received employees two women calls At least other from Davis’s office. telephone but operators, de- McGee Sons’ office acted as “relief” produced trial, at nor did fendant of them as a witness neither might who persons defendant office have account for all. telephone indicates there answered the at time. evidence were, at time, telephones or more individual some seven connecting office with the switchboard and that there were some twelve persons employed more in the office. days plaintiff’s Trafficway, Eleven after removal to during night early morning March 25th or the of March 1921, plaintiff’s burglarized store automobile tires and tubes feloniously $2131.06 the value of prem- were taken from within the burglary ises. The Sunday morning, discovered on 26th, March day, on the next Monday, March 27th, Mr. notified L. S. Davis of his loss. On day, day same following, one 'W. Taylor, B. secretary defendant’s inspector resident risks, appeared plaintiff’s store and inspection made premises. According Taylor testimony, told that he would have to changes make premises certain in the in order place to make the more Plaintiff secure. Taylor testified: “Mr. went on further tell me changes I made these the risk would be all right; that I changes didn’t make these there would nothing ’’ (cid:127) company else for the get to do off but Taylor risk. nothing said plaintiff about policy being suspended. cancelled or Plaintiff Taylor told that he would comply Taylor’s with requirements, sug- gested changes in premises, which immediately did at expense. some substantial

Mr. John H. Crandall, manager the office of Davis & Company, tes- tified Monday following the burglary, plaintiff notified & Davis Company of his loss. Immediately after receiving that no- tification, Crandall called the office of Thomas & McGee Sons on telephone and notified them that there had been loss under the bur- glary policy issued Block Company Tire and was told by McGee SupReme op 316. Court Yol. ’ Shortly after- after.

and Sons officethat the matter would be looked they had no telephone ivard, that McGee & Sons notified Crandall place of business record in their removal of office im- Crandall Trafficway. from 2307 Grand Avenue to McGee had mediately what been inquiry in Davis’s office to see started an making removal, and, after notifying done about & Sons McGee office, where he inquiry facts, & Sons’ he went to McGee Joseph conferred Mr. that Mr. McGee then with McGee of office. Taylor, secretary defendant, called and Crandall Mr. the resident informed him of and the contention of the circumstances of the loss they plain- McGee & Sons that had not been notified of removal business, inquiry tiff’s had explained that in Davis’s office devel- oped the fact that Miss Hutchinson had called McGee & Sons’ office and notified them of the removal on March McGee there- inspection Taylor g’o told Crandall that would out and make an premises of the Trafficway. days at 2433 McGee Two three after this conversation, requested Company McGee & Sons & to fur- Davis nish setting affidavits giving forth the circumstances as to the notice of removal, company furnish order “to [defendant] the full facts in promptly the matter.” Mr. Crandall prepared the affidavits of himself and touching giving Miss Hutchinson by plaintiff removal notice & Company to Davis and Davis Com- pany in turn Sons, to McGee & and the consent given to such removal by McGee & telephone Sons over the to Miss Hutchinson on March 15, 1921. These affidavits were transmitted to McGee & Sons L. S. Davis April letter on 1, 1921.

Plaintiff, having meanwhile learned from Davis that defendant, or its representatives, & Sons, McGee had raised question some as to the policy covering premises Trafficway, himself called the officeof McGee & Sons and was referred to one Julien, defendant’s adjuster charge of burglary claims, but, finding Julien in at the time, plaintiff left his card with the word that he had called to see Julien. Thereafter, plaintiff received following letter, dated May 2, 1921, addressed to him at 2307 Grand Avenue and written on defendant’s stationery: “As I am you advised that have been in the office to regarding see me burglary loss of The Block Tire Company, you this is to advise hereby denies lia- bility claim, of this for the reason had no policy contract covering premises alleged where this to have happened and at it happened, the time good and for other and sufficient-reasons. truly, Yours W. Supt. O. Julien, Department.” Claim Julien testi- fied, as a witness for defendant,- that he had acted in good faith in writing denying the letter plaintiff’s claim and liability denied investigation because Julien’s disclosed “had place at where he claimed to have had burglary.” y. Fid. & GuAR. Co. Blook United States himself letter, either writing the further testified before He as to whether records defendant’s or his officehad checked whether recall Trafficway but did not location, covered the McGee cancelled policy had been company’s showed that the records return, the unearned returned, offered had whether trans- the affidavits premium policy, and did not know whether him at Company were before by Davis & mitted to McGee & Sons ‘‘ words and for explained that the the time he wrote the letter. He “just were rather good in the letter other and sufficient reasons” used points set out there expression specified other an omnibus in case the properly my don’t cover denial.” bur- situation, plaintiff’s premises were

With the matter in this early morning glarized May 14th, night or the second time on the May 1921, and tubes of the value 15, and automobile tires subsequent- premises. $3030.87 were stolen from within the Plaintiff ly making his net loss from $95.20, recovered two tires of value of burglary May 16, morning, the second On the next $2935.67. Baltimore, office in sent a letter to defendant at its home &

Maryland, City, and also a to Thomas McGee Sons in Kansas letter notifying robbery yoit and that will them of the second “we look to protect request that-you proof us this matter and send us Defendant, through loss blanks.” its home office and its vice- president, replied May 19, 1921, as follows: “Your letter dated May referring letter of 16th received. We are this matter to our City investigation. representative Kansas office Our will call ’’ you in near future. representative Plaintiff testified of defendant ever came to burglary, see him after the nor second did defendant send him blanks proof which Plaintiff, however, to make of loss. prepared a claim, giving a list, description and value merchandise, of the stolen and took the claim to the of Thomas office & Sons, McGee where he Joseph saw Taylor, McGee and Mr. Mr. defendant’s resident secre- tary. “They my H>etestified: took claim and looked it over and said, your ‘We don’t want this. We are not on risk. We have noth- ing it,’ to do with and handed back me the claim.” Whereupon, plaintiff left claim in McGee Sons’ office. Plaintiff testified never, any time, gave that defendant at him notice of cancellation of refund, did refund, part nor or offer pre- paid policy. mium him on said This fact is conceded as true witness, Joseph defendant’s Mr. McGee. Taylor, witness,

Defendant’s admitted that, upon learning of March, first had he visited premises Traffieway, 2433 but stated happened that he go there through curiosity anything else, “more than on account of them having I loss. What went there curiosity see how 316 Mo.—19. Supreme Yol. .Court a conversation he had that got admitted (the burglars) in.” He also a casual “in plaintiff he told with,plaintiff, which that time premises to make the been done

way” what should have went to however, that he denied, against burglary. He more secure of de- representative authorized Trafficway as the store the McGee him to had asked & Sons of McGee fendant, Joseph that McGee or under which about conditions anything he said go, that “stay on the risk.” company would defendant, stated for Joseph McGee, testifying as witness Company of of Davis & being informed Mr. Crandall after inspect it and go see Taylor down and loss, first had “to he asked accepted would out if have and find we what the conditions were made; inspection an request make had been the insurance accepted it been premises the business had re- to see he would have inspection quested,” Taylor said would make and that he ' inspection reported back and the result his to McGee. came been, & have tends that Thomas McGee Sons evidence to show agents November, duly appointed since 1916, the exclusive City; policies defendant in Kansas that of insurance issued office, defendant were & office whicji written McGee Sons’ was supplied by supply defendant with a blank endorsements policies, for policies, riders all ready attachment of which were for except delivery, signature issuance and Sons; for the of McGee & procured McGee & Sons policyholders defendant’s customers not only through working solicitors aon commission basis out of their office, also, large own but extent, through to a agents other insurance not directly office; connected & with McGee Sons’ Davis, that L. S. or Davis Company, large & procured amount of business for de- fendant, and that dealings business between defendant’s authorized representatives, Sons, McGee & and Davis Company & extended over long period time, during which premiums time the policies through insurance sold Davis & Company aggregated several thousand dollars; general that it was practice and custom between these two offices, procure Davis Company & the customers, tele- phone necessary or information data to McGee & Sons, who, in turn, countersign policies would write and and turn over them to Davis & Company to be customers; delivered that Davis & Company charged were by McGee & Sons with premiums for such policies, Company which Davis & directly collected from the cus- Explaining tomers. the method of business between the offices, two Joseph witness McGee of & McGee Sons testified: “We don’t consider that as Mr. [plaintiff’s] Block’s business. We doing were entirely business Davis; with L. S. he was responsible for it. To ethical, we must agent; look to the other we were doing business through him. We wanted of Mr. Davis’s business that we could & Fid. Guar. States United Block busi- any other business, but only this acceptable, get which living.” make our way we that’s because acceptable, ness McGee & offices, two between made were Monthly settlements policies upon the premiums Company for & billing Davis Sons amount Sons the & to McGee remitting Company Davis & issued Company’s & Davis customers, less premiums collected Crandall, witness business. procuring commissions and course practice it was the Company, & testified Davis noti- Company were Davis & offices, when the two business between location, for changed his business he had by any customer fied telephone & Sons office of notify the Company Davis accepted be change would and the reported change or removal of the from, telephone; the notice the time McGee & Sons com- premises, the defendant new inspection subsequent upon then would risk,” McGee & Sons stay on want to pany “didn’t the defendant telephone or letter Company by notify & Davis Company to request Davis policy and of the cancellation requested same the customer return the from procure the cancelled & Sons. to McGee following general insurance contained the policy of

Defendant’s provisions: Suspension representative of authorized Inspection and “6. —An premises inspect the rea- shall have the

the Insurer premises make the require the Assured to reason- time, and to sonable requirements suspend insurance until such ably and to this secure, satisfaction; suspension Insurer’s complied with to the are writing. notice in subsequent shall be reinstatement Policy (a) shall up- “7. be cancelled Cancellation of —This Assured, request of a written from receipt by on the Insurer premium to an according when the Insurer shall be entitled earned table, (b) upon customary delivering short-rate the Insurer registered given mail Assured at sending by to the the address in the Schedule, Notice, when the Insurer shall a Cancellation be entitled to premium.” pro-rata a earned attorneys City Kansas bar plaintiff’s

Two of the testified on be- the reasonable value of the services of attorneys half as to suit, bringing prosecuting respecting this in the claims set forth petition. According to in of the their testimony, each count the val- the amounts allowed jury ue of such services exceeds therefore in their verdict. jury to the

The trial court submitted the issues raised on both petition, jury counts of the and the returned a plaintiff verdict for count, burglary loss, the first based the first for $2131.06, with $500 the sum of thereon, attorney’s interest assessed as fees; and plaintiff a verdict for also returned on the second count, op SupReme Vol. Court interest there- burglary loss, $2936.67,with for based the second Judgment was attorney’s fees. as on, $750 sum of and assessed the including at- $6807.15, aggregate sum thereupon entered a trial. for new filed motion time its torney’s fees. Defendant due was excessive being verdict court, opinion trial that the pe- each count assessed under the extent fees a of such to file remittitur penalty, plaintiff tition ordered Plaintiff be sustained. amounts, or trial would new motion whereupon an was order nisi required remittitur, refused to file the prosecuted which order granting trial, entered new May appeal Appeals. On City Kansas Court City Appeals opinion, filed an concurred Kansas Court of reversing remanding judges court, of that the cause judg- and enter directions to trial reinstate verdict court to Respondent (defendant) ment favor of filed thereon. rehearing. term, Subsequently, during respond- motion same rehearing judges ent’s overruled, motion for but one court, opinion contrary opinion deeming the and de- Non-Royalty cision this court case Co. v. Shoe Phoenix 399, requested Assurance that the cause be certified pursuant court requirement, to the constitutional and an order certifying transferring entered record the cause to this ruling. court for our determination and argued I. It appellant that, inasmuch as our decision in Non- Royalty Shoe Co. v. Phoenix 277 Assurance Mo. deals with but a single proposition pertinent case, viz., the allowance of penalty fees as respondent’s vexatious refusal to alleged losses, only this court is concerned any ^ie be, there between our decision in codicil of^WhTe^11G° that case the decision of the Appeals Court of in Case. bar, upon bearing single ease at proposition. that appellant’s The basis of argument judges is that all of the City Appeals Kansas Court of concurred opinion in the of that court in and, the instant case judges requested while one of the cause be certified to this court because he opinion deemed the to be contrary ruling to our in Non-Royalty Company Shoe case, we pass only should upon single, question concerning which there be a previous conflict between the decision of this court and that of Appeals. Court of Respondent, on the other hand, insists that this case is purposes. here for all 6 Section of 1884 Amendment of VI Article of our State provides: Constitution any “'When one of said courts of appeals any

shall proceeding cause or render a decision any which one the judges therein sitting shall contrary deem any previous decision GtjaR. 293 Blook &Fid. ÜNited States y. Supreme Court, or of the appeals, any courts of said one same term pending the must, motion, its own Appeals said Court of proceeding said certify transfer cause afterward, not thereupon ,and Supreme Court, original to the transcript therein pro- said cause and determine Supreme Court must rehear proc- ordinary appellate ceeding, jurisdiction obtained case of as ’’ duty our thereunder makes clear mandate ess. constitutional though jurisdiction obtained our rehear and determine this case con- ordinary has been our uniform process appeal. an Such provision. [Epstein Railroad struction of this constitutional Railway Williams Clinkenbeard, Mo. 232 1; Mo. State v. 250 Mo. Beneke, 288 Brunswick v. City of 307.] purposes, re- II. Inasmuch us as this case is before spondent granting trial a new insists that the action of the court trial can grounds raised defendant’s be sustained several assigned by motion for trial regardless a new of the reason trial, first consider action, proper court for its deem it we Demurrer to recovery at At appellant is entitled to all. whether Evidence. ejose again at conclusion plaintiff’s case and 0f requested the trial instruct testimony, court to defendant all the plaintiff is evidence, and the not en- pleadings under the petition. refusal of these count of the titled to recover either charged ground as a peremptory error defend- instructions exceptions having been taken defend- trial, ant ’s motion for new duly overruling of instructions and ant at the each time If exceptions. case, no then preserved in the bill made questions granted a trial and all properly trial new other court drop out of the case.

Respondent cer- insists that the of insurance the renewal recovery tificate which seeks do not cover the location Trafficway; respondent had no re- McGee notice of the from 2307 Grand moval of merchandise Avenue to burglary; Trafficway prior to the first did con- opportunity inspection and had no sent to the removal make change pol- premises; was made either new by icy by any or the renewal certificate endorsement executed officer respondent. change provides: “No shall duly be valid unless made endorsement executed officer of the Insurer.” hand,

Appellant, on the other contends that & Sons, McGee re- spondent’s representatives, by powers authorized virtue of the con-' respondent, authority verbally them had ferred risks bind having and policy provisions, and waive been notified Davis Company to the Trafficway removal location on MIssouRI, SUPREMECOURTOP VoL. 316. day having verbally of the removal and bound the risk at the location, respondent new is liable. Much is said in the briefs of both parties respecting agency relationship whether an existed between Company respondent respecting power Davis & or au- thority Company accept of Davis & the notice of removal and waive provisions policy. unnecessary We find it to discuss or questions. questions consider those The real for our consideration ruling Sons, respondent's repre- is whether MeG-ce& authorized

sentatives, verbally had notice of the removal and consented thereto thereby and whether is bound so as to render it liable for appellant's will, therefore, questions losses. We consider these two in their inverse order. conclusively were, The evidence shows that McGee & Sons at the question, respondent's general agents times here in representatives and authorized City. certificate, in Kansas renewal signed by riders attached thereto were all McGee & Sons as author- representatives respondent. Respondent supplied ized Authorized Agent: policies, McGee & Sons with blank forms of endorse- ready delivery upon ments and riders being signed by for issuance and Waiver. McGee & Sons. Premiums collected Company upon policies by respondent Davis & insurance issued were paid facts, to McGee & Sons. Under this state of whatever jurisdictions, the rule in other the rule is well-established in this agent authority State that an `such as McGee & Sons has to waive a change in, of, policy, notwithstanding provisions or forfeiture contrary, the thereby. and the insurance is bound [Thompson Co., 12; v. Traders' Ins. 169 Mo. Nickell v. 420; Springfield Laundry Phoenix Ins. 144 Mo. Steam Co. v. Association, 1; Traders' Ins. 151 Mo. James v. Life 148 Mo. Ward v. Ins. 244 S. W. and United Zinc Co. v. Assurance Corp., App. 380.] conflicting notice, The evidence is as to whether McGee & Sons had prior burglary, plaintiff's to the first of the removal of stock of mer- Trafficway chandise to the McGee location and whether consent was given by testimony appel McGee & Sons thereto. The Notice. quite positive lant `s witnesses is the notice of removal given by telephone day by appellant's -was of removal book- keeper Company to Mr. L. S. Davis of Davis & on the same day, Company's bookkeeper Davis & called the office of McGee & by telephone reported appellant Sons the removal and asked if day would be covered from thdt and received the assurance that he permits would and that would be ~ssued. The-evidence tends to show giving this method of notice of removals was the usual and es- practice existing tablished and custom between the office of Davis & from the tes- n Company appears and that of McGee & Sons. It also Gtiaij. Fid. & UNITED States Blook v. manager of Horn, who was witness, timony respondent’s of matter was a it office, that & Sons’ department of bnrgiary call to that office having business persons daily routine for of changed condi- or other removals give notice of telephone and of that, in the absence and policies requiring amendments tions tele- duty of the matters, it was of having charge such person they reached messages and see phone operator to take down office & Sons’ of McGee employees several party. While from removal, was received message, notice testified that no such McGee & appears Company, of Davis nevertheless office & whom time, several employees at the Sons had number of other neither switchboard, respondent and operated telephone at times for their ab- accounted produced trial nor at the them witnesses to officewho undertook person & Sons’ in McGee sence. Whether the Company delivered telephone message Davis receive the who person whether the message proper person to in the officeor in fail- guilty neglect duty telephone message was received the immaterial, for she ing message right party is to deliver her act was the act agent Sons and employee and of McGee & 188 S. respondent. America, Modern Woodmen [Simmons Casualty (Mo. Fidelity Co., 190 W. App.) Woolverton v. N. purpose passing upon the Y. For the demurrers 41.] evidence, testimony appellant and his wit- we must accord to the might jury every which a nesses reasonable intendment inference for the draw from all the facts and of the ease. It was circumstances discrepancy evidence of reconcile the and conflict between the appellant respondent by their verdict and that of and to determine fact, given the issue of removal was to re- whether the notice of spondent’s representatives authorized them. consented jury appellant. their verdict found'that issue for

Respecting burglary, the loss occasioned the second there can be ground dispute reasonable had notice long prior respondent’s removal loss, Taylor, resident secretary inspector burglary risks, visited Traffic- the McGee way only premises day burglary. Appellant’s two first after the testimony Taylor required is to the effect that certain Changes in changes premises make order to more secure Premises. appellant then if changes stated that “the made those risk right,” changes would be all but were not made “there nothing would be get for the company else but off risk.” do Appellant complied testified that requirements he with the made changes at expense. some appellant’s substantial While the ver- sion of this by Taylor, conversation is denied the fact nevertheless re- Taylor mains that did premises visit the before the second the direction of Joseph Sons, Mr. McGee of McGee & and that neither SupReme Missouri, You. Court oe either at that time representative respondent, Taylor any nor other of any suspension of appellant of any gave to time, at other notice respondent, policy. Whether the or cancellation of the insurance through appellant make re representative Taylor, to the ordered its did the quired changes premises appellant make the and whether changes of fact expense himself likewise issues at substantial to were representative an in jury. the the determination of Where the expense incur trouble and company surance induces the insured to comply provisions policy, in order to ground right to re waives its to a forfeiture and on that insist 531;W. Tins payment Co., fuse the loss. v. Ins. 256 S. [Painter ley Co., App. Co., Ins. 182 W. Ins. Shearlock v. S. ] 89. Regardless respondent of the time when removal first learned burglaries occurred, merchandise to the where the it location policy appellant has never cancelled or offered to return to premium. eight unearned policy term had about to months .burglary run at the time of the first and over seven Cancellation: run months to at the of the second Re- burglary. end Return of spondent, by provision of a re- virtue Premium. right any served to itself to policy cancel the at upon delivering registered sending by time mail assured notice, whereupon cancellation entitled retain pro-rata premium. earned conditions, Under it is settled law this State policy. that the insurer waives a forfeiture of the In case, Dyer a recent 964, v. American Co., Insurance 244 W. S. 965, City the Kansas of Appeals Court has said: “Under such cir held, cumstances at State, least assuming that defendant is position by inconsistent contending that policy is void and at retaining same premiums time to which it has no if its con tention is correct. estopped It is therefore deny that the policy at the time of the fire was valid and full effect, say force and or to that it has not upon.” waived the forfeiture relied To the same ef fect are Gold Issue Mining Milling Co. v. Insurance 267 Co., Mo. l. c. 605; Jegglin v. of World, 202 Woodmen App. 367; Mo. Harland 192 Ins. Mo. App. McIntyre v. Ins. 131 App. 88; and Painter v. Ins. S. W. 531. We conclude appellant entitled submission his case upon both counts of petition and the court nisi committed no error in overruling respondent’s peremptory instructions. III. Respondent appellant plead contends failed to in his pe

tition waiver policy provisions insurer of the and of a for feiture of because removal of the merchandise a n location policy. mentioned Both counts al- y. 1986\ &Fid. Guar. Co. BlooK United States saidMs 1921, plaintiff removed lege “on March to the aforesaid Pleading last the location place of business from Waiver. Traffieway, in one-story at building located his premises last aforesaid City, Missouri, to the and moved Kansas accessories; and hand, tires, tubes stock, then on of automobile coverage said defendant, plaintiff’s request, extended the provisions subject to all terms premises aforesaid, last complied with duly performed and policy. . . said . Plaintiff part his to be done policy on of the terms and conditions of said together with de performed.” general denial, answer is change in location of the there fense “at no time was by any thereon exe premises endorsement referred to in said ’’ thereupon Plaintiff by any insurer or otherwise. cuted officer of the respondent reply in and pleaded provisions his policy waiver of the allegations of inconsistency between the urges that is an now there petition reply. the and those of the well-recognized practice in long

It has been the established policies, proof to admit of waiver State, upon in this suits insurance alleged plead upon in requiring to be the without the waiver relied allegation ings, always under an proof liaving been admitted of This, upon policy by the performance of the terms of the assured. policy theory that, if have been waived the terms company, they and course of business of the insurance conduct and, general allega longer any part policy hence, constitute proof required assured is performance tion of covers all 151; Nickell v. Ins. 144 make. v. Ins. Mo. Assn., [Andrus 606; McCullough v. Ins. Makos Ins. Co., 222 234 S. Ins. S. W. W. Scott v. 1047.] upon prac- being obligatory appellant, under our established It not plead in his is tice, plead waiver, reply the fact that he did waiver immaterial, inconsistency or and hence there is no conflict between reply. allegations and those of the Respondent strenuously policy

IV. contends that the of insurance liability $3,000 during sued limits its the maximum sum one-year certificate, regardless term of the renewal of the number during policy year. by appellant of losses sustained appellant’s their verdict determined loss to be $2131.06 burglarly, of the first $2936.67 reason Successive Burglaries: burglary, making aggregate reason of the second Amount respondent loss of Hence, $5067.73. contends that the Recoverable. judgment clearly verdict and nisi are excessive and granting order a new trial court’s is sustainable trial Appellant inasmuch as ground. appellant’s insists neither of respondent $3,000, the sum of losses exceeds liable under terms 316. Court SUPREME oe Vol. aggregate its losses, although insurance contract for both necessary our $3,000. the two losses This makes exceeds contention applica- policy provisions consideration and of all construction lengthy and cov- point ble involved and raised. The quote pages ers some To printed twelve or more the record. provisions lengthen opinion.' unduly thereof would our provides hereby It agree indemnify “does designated specified Assured in hereinafter the amount sched- ule, Far All Direct Losé:

“Insuring A: Clause “By taking the felonious of merchandise described Statement premises, of the Schedule, fixtures, within the furniture by any person persons entry or shall have into who made felonious premises premises any during day night, time or when the actually not . . open ; are transaction of business . ‘‘Insuring B : Clause “By taking , . . money the felonious . securities . . . per excess of ten centum of the total amount of un- insurance policy, der this but in no $500, during event excess period, from within the safe or vault assured’s .... . . “General Provisions. . ‘‘ This shall damage: not cover loss . . .

“ (o) beverages To purposes narcotics alcoholic for medicinal in excess of ten per centum of the total amount insurance under during but in no event in policy period; excess $500 “ (p) To merchandise prem- located the show windows in the ises, by person any persons through occasioned or the unlawful break- ing of such show windows premises, from the outside of the more for $200, during than subject policy period, the to a further limit of $25 one article of merchandise so spe- contained unless otherwise cifically amount; insured for an excess . . .

“8. Payment Replacements of Loss . . and . Any payment damage to the assured for or policy loss under this shall constitute a payment in reduction the total provided amount insiw'ance of of policy. this . . . ‘‘Schedule. granted by

“Statement 5. The insurance this policy and the premium specifically apply therefor shall as . follows: . . (B). money (subject

“Section and On securities to the limita- specified “B”) tions in Insuring and Clause on merchandise de- as scribed in . Statement 7 of Schedule . . Insurance, $3,000. the Premium, . . . $205.50 ‘ ‘ premises in Statement The merchandise the insured under this policy fully tires, described as follows: Auto tubes and accessories. »] States Fid. Guau. v. ÜNIted Blook covered all value of merchandise 8. The maximum

“Statement $5,000, in exceed policy is force hereby will at no time while (Italics ours.) $4,000. . .” . will minimum value not exceed respond- policy the of discloses study analysis A close B for the fe- liability by Insuring Clause specifically ent limits its safe the assured’s within taking money from lonious of and securities of insurance under total amount per or vault ten centum of policy period, $500, du/ring policy, said but in in excess no event of damage for loss or General Provisions by paragraph (o) of the per beverages purposes to ten or for medicinal narcotics alcoholic in policy, but no insurance under the centum total amount of by paragraph policy period, and during event in excess $500 of taking located (p) merchandise of the General for the of Provisions during $200, in the to not more than premises show windows period. policy that, by of the restrictive It to us its use seems clear had in mind that “during policy respondent words period,” might there and intended be successive under the losses during liability use those to limit its term restrictive words period securities, taking money nar- for the cotics located in show beverages, and alcoholic and merchandise regardless window's, specified policy, several amounts number, aggregate amount, of such losses. How- successive ever, aforesaid, specifically while the in the three instances policy, respondent’s liability limits total losses cer- case successive tain named “during policy period,” amounts such words of Insuring policy respecting limitation are used in A Clause taking premises of merchandise within the from not located the show vdndows. On hand, respondent broadly agrees the other indemnify “to the assured in the amount specified the schedule ($3,000) for taking all direct loss felonious merchandise premises.” within the language might The use of this well be taken respondent indemnify construed to mean wdll the as- sured every single direct loss taking reason each and $3,000 (the merchandise to the extent amount mentioned in schedule the policy). If it had been the intention of its liability limit taking successive losses caused of such $3,000 merchandise to during period, those italicized words of limitation could easily have been written into the were in the three other instances above Furthermore, mentioned. readily will be policy provides observed that the no method of ascer- taining which of several paid such losses shall be and in what order they paid, shall be in the event that several such losses shall occur payment before the any them, vdiere such each loss is less $3,000, than but the aggregate of all such losses exceeds that amount. SupRemb 316. Court oe Yol. L. R. H. Co., N.

In Anderson v. Life Insurance Aetna in (N. S.) “If such policy provided: A. 730, an accident insurance ninety days from juries operation within surgical shall a necessitate indicated paid . . the sum . thereof, the date the insured shall be contained, provided operation for such in the schedule hereinafter for one always payable that not than one amount shall be more In con operations performed more result of accident.” as the one defendants struing provision this “The policy, the court said: only pay that, they agreed to one paragraph, contend under this operations; or the sums named in the schedule different for enu operations other words, only for one if of the different several had If necessary merated should be of one accident. the result have drafting purpose policy, been the defendants’ could easily only provided operation for one payment be made should following policy . . . attached to the accident. The schedule long operations. a The contains for payable list of amounts different vary pay according amounts and if operation; to the nature only ment operation for promised one when several intended be necessary, provided were probable it is some method would have been by which to be which amounts should determine one of different paid. If policy only one, defendants are for contains liable nothing amputation which makes them for liable to arm rather than for the reduction of the or ribs. fracture of nose operation only Which paid should be for could be in determined voking an arbitrary against parties.” rule one

A analogous case somewhat instant is Crenshaw In- case Co., 63 App. There, surance policy an accident insurance provided indemnity for an per for loss of time of ten dollars week paid period be to assured for exceeding thirty consecutive weeks. The assured had been paid indemnitjr $41.43 as for loss of time due to previous injury. judgment accidental He recovered for for $300 loss of injury. time occasioned second accidental The insurance contended year since was for a term of one provided for indemnity a total time, $300 for loss óf the as- sured should not been have allowed to more than $300, recover less paid $41.43 him on injury. account of the first accidental In rul- ing contention, the court said: “We do not prop- think this the er policy. construction of limits the amount indemnity one accident. Otherwise, if the full limit should paid amount for an happening accident obtaining soon after protection assured would be without for the balance year. meaning evident is that the assured shall protection accidents, have him successive which happen to during period (Italics policy.” ours.) covered 301 Fid. & United BLOCKv. States Guar. of tlie clause tbe strongly stressed But, it is dam- for loss or Assured “any payment to tbe policy to tbe effect in reduction of payment constitute age policy shall under this loudly to policy” speaks this provided insurance total amount of insurer, liability of the even $3,000 the ultimate is the effect unmistakably that such losses, and shows the event successive However, to the insurance contract. parties of the was the intention policy policy, pro- does not view and construction under our in the event successive vide for “total amount of insurance” prem- arising taking from within the losses out of merchandise $3,000. liability single to except limit the for each such loss ises, paragraph held to have Furthermore, policy this of the well be respecting taking provisions reference to the other money securities, beverages, and and narcotics alcoholic and merchan- windows, dise from show in which three is the total instances alone liability amount of and insurance of the insurer limited language policy pe- specified “during policy amounts riod.” for say respondent’s To the most am- contention, the is biguous liability single as to $3,000 whether is limited to for each loss in question occurring the kind here during or for such losses .of policy. term of the rule this is that, State where established provisions capable insurance meanings are two fairly susceptible meaning of two different constructions, that and construction most favorable the assured must be even applied, though meaning may another have been insurer, intended for insurer not the assured is the author of the instrument. [Cunningham Casualty v. 82 App. 607; Mo. Lemaitre v. Casual- ty Co., 599; 195 App. Rieger Mo. 202 App. 184; Mo. Accident Mathews v. Woodmen, 326; Modern May on Insurance (4 Ed.) sec. Under rule, the latter think we must 174.] provide indemnity held to $3,000 the assured to the extent of separate single each loss of the kind here question, and not liability limit the insurer’s for successive losses. Respondent Y. claims that the order granting a new trial is sus tainable because of giving the erroneous certain of in urged It structions. that the instructions are numerous and volum confusing inous, and are commentaries the evidence, misleading and assume the existence of facts, controverted Instructions submit to the jury issues of law rather than issues of Appellant’s fact. instructions are numerous and somewhat lengthy, yet think fairly we clearly submit proper issues of fact to be jury. decided By reason of their number length, good purpose will by quoting be served opinion. them in Their number, length and minuteness of detail do not constitute reversible op Supreme Von. 316. CouRt Railway Co., Walter 274 W.

error. S. [Kidd Payne, 294 Mo. 250 S. Wolfe v. v. Cement W. 170.] criticism, say respecting grounds of As the other suffice find plaintiff’s given we have instructions carefully examined required predicated upon that are facts in evidence jury to find those facts. of the instructions the existence of Two question employee whether McGee & submitted to the telephone Sons, receiving of removal to over the the verbal notice Trafficway stating permits and in that removal McGee location acting in issued, would be the usual course of the business of duty & Sons, apparent while on in their officeand “within the scope,of employee’s by duty, you said so find.” It is claimed re spondent quoted language question used submitted a lawof jury. quoted phrase We think the has a well defined and com monly meaning. If respondent meaning understood believed that the phrase likely was not clear and was to be misunderstood requested jury, defining it should have an instruction phrase. [Berryman Surety Co., v. Southern 227 W. l. 101; Browning S. c. v. Railway 71, Mo. c. l. 72.]

YI. pleadings Do the support and the evidence jury’s verdict and finding pay of vexatious refusal to question? each of the losses in against In companies, damages actions insurance and at- Vexatious torney’s fees are recoverable 6337, virtue of Section Delay. 1919, provides Revised Statutes which : “In action .anv any company insurance against to recover the amount of loss . . . . . . insurance, a appear under if it vexatiously from the evidence such has pay refused to loss, jury may, such the court addition to the amount thereof damages interest, allow the per not to exceed ten cent a amount of the attorney’s fee; loss reasonable and the judgment aggregate court shall for the enter sum found the ver- dict.” discussing subject

In what constitutes vexatious refusal to pay statute, an insurance loss under the we said in Non-Royalty Shoe Co., 277 l. Co. v. Assurance Mo. c. 422: “We are convinced that a pay an vexatious refusal to insurance loss is not to be deduced from upon suit the mere fact that the verdict adverse to the defendant. Co., 174 Mo. App. 44; v. Insurance Keller [Patterson v. Insurance . . . The defendant is to be 440.] allowed to enter opinion tain an as honest difference liability, its or as to liability extent under contract of insurance, and to lit difference; provision igate otherwise, of the statute is ob viously through so shot with duress as to be invalid any view.” United States Fid. & Guar. Co. v. BloCK we 917, l. c. S. Aufrichtig Insurance W. Again, acting in company, say an insurance “It will not do said: law, or an issue an issue of fact may not contest either good faith, penalties the statute.” subjecting itself to the without Insurance rel. Life decision, ex Continental In recent State waiver of the issue l. c. which involved Allen, 303 court, agent, provisions relator’s insurance 1‘ right litigate the case therefore, had Banc, Relator, said: en have not waived what would otherwise proposition that it had company’s An complete defense suit. insurance been policies of its cannot be determined right payment to resist one by the facts jury, but must determined facts as found they reasonably it trial. appeared before the It has payment weapons a suit with all at its to refuse and to defend ground to command, long so as it has reasonable believe its defense is only persists pol when in its refusal meritorious. It icy after it is aware that it has no meritorious defense that it becomes , subject penalties delay.” for to vexatious respondent’s

Respecting pay loss, letter, to the first refusal Julien, superintendent May 1921, by O. W. 2, dated written of re- spondent’s department, appellant claim advised “that hereby liability claim, they denies of this for reason that had covering premises alleged this contract where happened happened.” to have and at time it Julien that testified good the letter was written faith. There is conflict the evi- touching given dence the issue whether notice of removal to was re- spondent’s representatives prior authorized the first to loss and wheth- respondent’s permission given or er assent thereto. is- While that jury in appellant, sue was decided favor of say we cannot surrounding that the respond- evidence circumstances show that pay refusal loss was ent’s to the first wilful and without reasonable based facts excuse, cause as reasonably ap- have peared respondent to the trial. We, before therefore, conclude that support is not sufficient which evidence to an assessment attorney’s of pay vexatious refusal loss, fees to the first which is petition. the basis of first count respondent’s

However, respecting evidence pay refusal to quite second loss is different. is indisputable evidence that re- spondent appellant’s the removal of knew of to merchandise the Mc- Trafficway long location prior Gee to the second loss. It is likewise indisputable respondent’s agent, Taylor, visited premises the new only day burglary. or two after the first Mr. Joseph McGee of Taylor & McGee Sons testified that instructed inspect him to premises at or respondent the new about time was notified of the by respondent’s first loss. It is admitted witnesses that op Supreme Missouri, Vol. Court has respondent suspended never or cancelled insurance was the unearned refund, appellant refunded, or to never offered period then had premium, although less than one-half loss Appellant gave notice of the second transpired. immediate Sons, its and to local respondent McGee letter to the home office by letter from home office representatives. Respondent replied its City referring matter to our Kansas to the effect are this that “we upon you will call in the investigation. representative Our office for up- called representative near future.” thereafter No appellant. appellant took his claim to the office personally When Tay- Joseph Mr. and Mr. McGee & and tendered it to Sons “ lor, they explanation, with the don’t want handed back the claim We nothing this. your We not on risk. have to do with it.” are We statement, according only ground record, Such was the or rea- given action, by respondent son appellant, the trial of before pay its refusal to the second loss. We find the evidence amply respondent’s pay sufficient to establish vexatious refusal support allowing second loss and the verdict of the assessing attorney’s petition. fee under count the second

Respondent however, claims, that the state facts does not support recovery damages attorney’s sufficient to of either fee ground pay vexatious refusal the loss. Both counts petition charge vexatiously refused, “defendant and still vex- atiously refuses, loss, for said part.” whole or in prayer judgment the second count is for “for the sum $3030.87, the amount loss, of said with interest thereon at the rate per per six May cent annum per also for ten cent of the amount of damages; said loss as also for $3250 the sum of which fees, said sum of $1250 is a states reason- attorney’s able for bringing fee and prosecuting this suit.”

Respondent rests its Dolph Casualty contention Co., 261 330, S. W. c. 334, l. wherein Division Two this court ruled that the evidence surrounding circumstances were insufficient to war an rant inference that the vexatiously delay defendant intended to payment. However, the learned writer of opinion that remarked: “It has several times that, been held this court in order warrant recovery per the of ten attorney’s fees, cent and provided as in that section, appropriate there must be allegations petition in the showing constituting facts vexatious delay, allegations and such must be supported by proof.” quoting allegation After petition (which is similar in to that case), the instant the writer opin ‘‘ ion remarked, further This is not allegation an of fact; it is simply a conclusion.” In view of the fact Dolph ease, the court went into the matter of the sufficiency of the evidence and ruled the evidence was support recovery insufficient a for vexatious re y. Fid. Guau. United States Block considering the was no occasion that there fusal, it would seem remarks of The petition. allegation of sufficiency Of the appear to be would therefore sufficiency petition court on the obiter dicta. least, in nature of somewhat, at petition allegation of the 373, the Co., 268 Mo. Fay Insurance In is identi pay loss refusal vexatious respect to defendant’s af of this court and this division in the instant cal with that case an assessment of included judgment nisi, which firmed the general allegation of vexatious refusal. for such penalty fees least, for we inferentially, approved, there refusal was vexatious statute, plaintiff desires if the 391: our said, l. “Under then c. therein, e., per ten cent on damages i. named to recover appropriate attorney’s fees, there must be the loss amount of en showing plaintiff claims and is allegations petition in the allegations by the must be sustained damages, and such titled to these plaintiff under statute to reason that proof. ... It stands allegations showing is entitled that he petition have must damages become a triable issue in the case. damages, and these these allegation bar we rule that the vexatious de . . In the case at . by any competent be shoion evi lay payment' establish to recover evidence tends to dence, whether such ours.) (Italics policy amount or not.” “vexatiously,” statute, as used in the insurance has been word of this to have court, the decisions has come often defined meaning, viz., reasonable, probable, without an cause or established allegation lan- the exact excuse. The allegation clearly apprised think guage the statute. We re- charge refusal spondent that it must defend its reasonable, probable, cause or excuse. Such loss was without alle- gation, opinion, conclusion, is not the statement our but an allegation of an fact. ultimate (C. Mining Co., A., Land 166 Fed.

In Stainer v. C. Cir.), prosecution, 8th action for an malicious court said in the allegation majority opinion: seems to us that an prob “It of want of allegation fact, of an ultimate expression able cause is condensed usage practice signify and established is made which ground defendant did not have a reasonable to believe that we guilty.'Accordingly, complaint conclude that a charges which that defendant maliciously clear averment and with caused probable prosecuted out cause whatever to be ’ ’ good states a cause action. holding appellate uniform Such has been the courts of this McGhee, 153 App. 343; v. Mo. State. Hilbrant Don [Wilkerson Eagleton v. aldson, 92; Kabrich, 69 66 App. Mo. App. 231; Mo. McQuillin 56 In Walser v. Thies. Mo. on Missouri Pleading 89.] 316 .Mo.—20. Supreme

306 Vol. Court oe (1892 Ed.), Practice is thus: 1, section rule stated Volume party required pleading, shall in or to “No be to state evidence his prove disclose to his ease. therein the means which he intends system, proper . . . our is or cir Under not to state the facts proved.” cumstances which the on is be ultimate fact relied to Furthermore, nothing to indicate there the record petition by respondent appears was attacked until after verdict. It to be the general specifying rule a is sufficient averment without particular acts, objected by demurrer, motion, unless or otherwise during- Storage Co., before trial. v. Auction & 252 [Geninazza Bottling S. Machinery Co. v. 273 W. Tebeau v. 547; Simpson Ridge, Wells, S. W. accord We 520.] ingly allegation support rule that the sufficient to pay verdict for refusal vexatious the loss.

Kespondent per claims that ten jury the failure assess damages attorney’s cent fatal, addition to an an fee is af absent finding firmative that the refusal to pay was fact vexatious. In Non-Royalty Shoe Mo. 399, Co. v. Assurance Division Two this court held “it is error pen while technical to assess one alty without other, against- the error is in favor of defendant and plaintiff, may complain.” and defendant But court said also connection,-. general same “Either should there be a verdict assessing- penalty attorney’s both the fee, or there should be an finding- pay affirmative the refusal to was in fact vexatious.” Aufrichtig case,

In the supra, J., speaking for division Graves, court, of this “The ‘may’ said: use the word leaves discretion in jury per damage to award or not award the ten cent and attor ney’s (1) fees. has It been ruled that: There should be least general assessing penalty verdict attorney’s fees; both the and the (2) finding ‘an pay affirmative that the refusal to was in fact vex atious.’ v. Assurance Mo. l. c. [Shoe This the 421.] error, against case rales to be technical bid error plaintiff.'’ (Italics ours.) case, jury

In the instant specifically were instructed to find that pay the refusal of loss was vexatious they before allow could The court jury fee. also furnished the verdict, two forms either which was to be used in the event plaintiff upon issue, found for the main providing- you one “if find a verdict in favor under the second count of his petition, you also pay plaintiff’s find defendant’s if refusal arising alleged second-robbery from the demand vexatious, was then your following verdict this count form;” form be used other of verdict “find that defend- . . . ant’s refusal to demand nob vexatious.” allowing returning assessing In a verdict an attorney’s fee, (cid:127) y. 307 Fid. Block ÜNIted States G-uaR. for given them and forms of verdict jury, under the instructions necessarily have that re- guidance, must found their affirmatively spondent’s pay was vexatious. refusal 442, is App.) 221 l. it Co., (Mo. S. W. c. Hayden

In v. Insurance jury said: main court instructed “In case the That recovery delay and for for fees. vexatious in by court in connection with its properly issue submitted plaintiffs while the amount of struction to find for awarded jury damages delay, no for the vexatious it allowed entirely testimony counsel in an amount within the offered fees see no case as to the value of services counsel. So that we allowing error in amount.” the action that upheld by appellate [Fay Similar our courts. verdicts have been 373; Trembley Casualty v. 268 243 S. Insurance v. W. 201; Jaggi App. no v. Insurance We see reversible 384.] returned, for, error in error, the verdict be technical there error is in*respondent’s favor. respondent

Lastly, by appellant’s is asserted that claim of loss for the second and the amount for in the count sued second exceeds, his a substantial by amount, quantum appellant’s proof and the amount the loss as determined jury’s Hence, respondent verdict. pay claims that its refusal to amount appellant claimed sued for was not vexatious within a strict construction penal statute, of the amount inasmuch as a less proved by loss was appellant jury. Appellant found testified burglary, some time after the second he recovered two having stolen tires thereupon a value volun- $95.20, and he tarily reduced his claim at trial extent. that The evidence clearly respondent shows did its refusal this base ground loss upon appellant’s untrue, claim excessive or or liability that its $3,000, gave both losses limited to but as its sole reason refusal, for such “We your are not on risk. We have nothing with it.” Having to do based its refusal single, defi- ground nite having appellant failed inform that the deemed his demand or excessive, inaccurate we believe position to relieve of the statutory penalty ground itself (revealed trial) appellant at the had given not theretofore credit for the tires, insignificant recovered value which was in com- parison Respondent the total complains loss. admission, objections, over its of certain evidence appellant. offered If er- ror was committed the admission of such evidence, we do not believe materially that it affected merits 1513, the action. R. S. [Sec. 1919; v. O’Neill 178 City, Kansas Mo. 91.] VII. Section Revised Statutes makes it our duty, appeals error, or writs of to “examine the record and award new Supreme Yol. Court oe court, circuit trial, judgment reverse or affirm the or decision given.” Under give judgment ought to have such as such court judgment as the circuit statute, this court enter here result) (which ought given, accomplishes same court have judgment to be may remand the with directions as to we cause given Rouse, Mo. court. v. entered circuit [Dickson Wright, Walbridge, rel. Mo. l. Donnell State ex c. attorney’s by the $500 199 Mo. l. c. The item of fees allowed 312.] penalty as a refusal under the count of the vexatious first items of loss and we see petition separable from the and interest resulting cause, no occasion for another trial of the in additional ex pense delay. granting

It ordered that the order trial is therefore nisi a new and that remanded reversed the cause be with directions to the cir- (as judgment original judg- cuit court to enter of the date of the 15, 1922) plaintiff ment, December have and recover of and from upon petition his $2131.06, defendant the first count of the sum of amounting $208.74, making thereon ag- with interest a total and gregate upon $2339.80 sum of said first count of petition; and have recover upon from said defendant petition second sum of $2935.67, count his with interest there- amounting $280.68, and the further sum of $750, as fees, making a and aggregate $3966.35 total sum of upon said second thereby petition; making count of the the total and aggregate amount judgment of said both counts of the $6306.15, sum of which last named sum shall have and defendant, recover of per per interest thereon six cent annum from December together paid, 1922 until with the costs in said circuit court. Lind- say, C., concurs. PER foregoing opinion CURIAM:—The by Seddon, C., adopted opinion

as the of Court All en Bane. concur, except Graves, J., who reversing judgment concurs and remanding the cause, but dissents as to the directions. George

Daniel Greever, Belle Greever Appel- C. Forrester, lants, W. and AMOSHilbrant. FRANK Barker One, Division December 1926. Guardianship GUARDIAN: Death of ipso Ward: Estate. facto termi- ward, guardian

nates mere accounts tive. the death of and the thereupon becomes property, immediately of the ward’s custodian must settle his legal and deliver the estate and effects representa- to the ward’s

Case Details

Case Name: Block v. United States Fidelity & Guaranty Co.

Court Name: Supreme Court of Missouri

Date Published: Dec 30, 1926

Citation: 290 S.W. 429

Court Abbreviation: Mo.