*1 Company Fire Eva Hunt States Insurance of New F. United corporation (2d) 193 S. W. 778. York, February City Appeals. Kansas Court 1946.
Al Lebrecht, Hudson, Alvin Trippe, Hogsett, John W. Trippe C. Depping Houts, appellant (respondent), '& United Fire States Company. Insurance *3 Loomis,
J. M. in J. Adams, Or respondent for (appellant).
BOYER, from the fact caption C. The case above of this results that both parties judgment certain appealed have this court from a rendered in filed case, agreement parties and an has been herein to present consolidate the them cases numbered as above one brief covering appeals points Accordingly, all in both cases. both will be disposed opinion. convenience, parties of in will For be referred to as and defendant.
Plaintiff instituted this action in the circuit court of Caldwell County by filing'her litigation petition April 1941. Due to other hereafter mentioned the case until March was not reached trial by at which upon pleadings both it was tried amended parties. By plaintiff’s sufficiency of which petition, amended unquestioned, recovery sought policy upon a fire insurance issued by the day plain- defendant- the 14th January, 1940, which tiff was against insured loss $1000 fire the amount of dwelling situated in Breckenridge. the town of It was totally destroyed by day the house September, the 18th fire on force; complied while the was in with policy; conditions of payment demanded policy; said loss under pay, said that defendant refused to said refusal was asserted to be vexatious under the facts stated. Plain- tiff judgment together demanded for the policy, amount of the attorneys’ fees.
The amended answer of defendant admits the issuance of question whereby against it insured house loss fire $1000, destroyed by the amount of and admits that the house was fire, every allegation petition. denies each other answering, Further the defendant provisions sets forth various *4 policy; particular placed appeal the ones which is in reliance read as follows: policy
“This entire shall be void if the insured has concealed or misrepresented, writixig otherwise, any in or material fact or circum- concerning subject thereof; stance this insurance or the ifor the property truly not interest of the insured be stated herein. policy, provided by agree- “. . . This unless otherwise entire hereto, ment indorsed or added shall be void ... if the interest ownership; of the be other than unconditional and sole or if insured building ground subject by be a on the of insurance not owned the any . if simple change, by . . or other than insured fee the insured, place interest, possession an take the title or death of of by legal process judgment ” whether or subject by of insurance the or insured, . voluntary or . . act of otherwise. alleges prior that August further fire and on
The answer a certain into contract for 1940, “plaintiff entered the sale of the Walker for a L. consideration of one Jesse property $500.00 and on said sale the sum of deposit $50.00. . . . as received That said contract for sale was in full force of and at the time said effect fire purchaser had ; taken . . possession property of said . that reason of by foregoing facts, contract of such ex- and and pressed specific and terms and provisions no policy, of said there was insurable interest in the plaintiff, Hunt, Eva F. at time of said fire, by wholly reason at policy thereof the the time void of fire, and any that not to maintain claim entitled ” under policy. said . . . The answer further states that de- fendant did not learn of fire, the sale property of the until after the and on day the 27th March, 1941, of liability policy denied under on of account fire, and at duly said time tendered return of the full premium paid by plaintiff policy, together for said with interest thereon; that the again tender was refused and defendant that makes such tender.
For reply, plaintiff policy admits that contained clauses set out in answer; defendant’s amended but denies that she entered any into contract any of sale or deposit she received on said sale that and alleged denies said of sale was force and effect contract any time; at denies purchaser possesion that the inwas of the property; and further reaffirms her ownership prop- sole of the erty change any and that no place kind had taken in her owner- ship interest; or insurable that she at no-time made fraudulent representations or or breached violated condi- policy; tions of the policy that the was in full force and at the effect fire, judgment according of the and prayed petition. to her evidence, A particularly relevant points raised summary appeal following: on is the Plaintiff the name of her testified Hunt; husband was L. W. husband lived in she years City approximately prior Kansas six lived in the thereto question Breekenridge; house in she owned the thereto was in hei title name. insurance on the evidence, photostatic house offered copy was identified and By appears transcript. terms, its Eva defendant insured year day from January, 1940, F. a term of one the 14th Hunt for damage exceeding fire in $1000 for all an amount not on loss story shingle described therein as a one and one-half roof ground building portion described frame located Block 6 Breekenridge. Third Wisconsin Addition the town It countersigned agent an required to authoried Com- countersigned have been appears to so issued pany, and Company. agent After issuance there local *5 September about 4, 1940, which caused some loss fire and a small September fire which a total occasioned thereafter on occurred Plaintiff Company, house. testified that of the destruction had destroyed been a fire was notified there agent, . one came to see some her about it. could house, She not 630 thought
fix time, the date or remember the conversation at Com- Inspection Adjustment was some one from Western City; they pany from Kansas talked about destruction Adjust- from the Western house; that thereafter she received letter identified and offered Inspection Company ment and which was stationery Western The letter on the evidence. was written reads as omitting caption, Adjustment Inspection Company and, &nd follows: 27,1941
“March Hunt, Eva F. “Mrs.
3564 Penn City, Mo.
Kansas
Re: S. Fire U. Company Insurance Policy No. Hunt, Assured Eva F. Fire 9-4-40 Loss “Dear Madam: on liability deny any under such respectfully
“We and all fire. was void at account of the above described Such 1940, by agreement, August of the fire because of a certain dated prop- you L. for the and one Jesse Walker sale between un- erty you not the Walker. a result were to the said Jesse L. As the fire at the time of conditional sole owner fire with you was no insurable interest in at time of there respect policy. described in such “Accordingly, hereby you pre- we and herewith the entire tender policy together mium such at rate interest thereon from our check per policy, the date of issuance of annum °/0 being covering premiums $7.53 amount of and interest such any objection being made enclosed herewith. If tender there please us and we make a tender with cash. check advise shall liability denying may develop investigation Other our reasons progresses. ‘ “Very truly yours, Company Fire
U. S. Insurance By A. M. Rossman Jr. Adjuster Its only receipt “Registered delivered addressee re- —return —to quested.” defendant, objection permitted Over the show proceeding in the circuit court the defendant instituted City County April 14, at Kansas wherein defendant Jackson sought declaratory judgment, was served with *6 summons in bearing that petition date. The were offered summons evidence. In petition that sought the defendant to have of insurance had declared void for the reason that violated the for sale terms on account her contract property prior that she to the fire. Plaintiff further testified employed attorneys not represent to her case; in that that she anything done dispose property, herself she still to that owned it. On her cross examination* stated that she husband had years moved out about six before they after rented; Stucker; moved out the property was Mr. that local real dealer, estate that rent; attended to the collection of the they City after anything moved to Kansas her husband did not have looking hands; to do with property, in her but after. was. they talked things they over about it and did not want to sell they they at the thought first Breckenbridge they left because might go back; ques- that later her she and husband talked over the tion of general sale of the property way, they in a whether should not; sell or buy that there property, had been some offers to one tenant; sale, did she not write to Mr. Stucker about the her might but may husband so; have done that she have told her hus- band to write to Mr. Stucker remember but she did not because it was long ago. so testimony She was then examined reference to certain gave she deposition declaratory which had been taken judgment by the action defendant. Her main were answers that she did deposition not remember because the taken in 1941. She was asked in deposition requested whether or not she ever Mr. buyer Stucker find the property. for said did not She she herself; do so might requested that she it, have her husband to do but she did not remember. Plaintiff if was then asked Mr. Hunt wrote selling Mr. Stucker about and said: “I suppose did,” he guess and “I so.” When asked whether ap- or not she proved of her writing husband Mr. the proeprty Stucker to sell she “Well, things. said: I did in some I don’t what know letters were they they written.” thought ought She said had talked it over and sell; she write, thought did not tell her husband what to approved she sale; they of the terms of that the offer was made and accept decided it; that her husband negotiations carried on the through was made offer Stucker Mr. Mr. Hunt about the terms and how it permitted was to be sold. She was state that approval, objection was with over her counsel that .authority no writing authorizing any agent there was act for her. She further testified that there was an offer made Mr. Walker August purchase property. on the 19th of Defendant’s counsel proof in regard made various offers of to the terms of the proposed sale and whether or the offer not Stucker was made to her hus- property. objection band her behalf the sale of the On authorize did not
plaintiff’s counsel, and after testified she writing to make her one else Mr. Stueker or husband “Well, authorized she her, the court said: offer and contract *7 that even counsel of defendant’s Upon to do it.” insistence husband orally, ratified authority writing it could be though not in just “Q. I following further examination: permitted the court ? Was Q. A. you the offer Yes. asked if the offer was made and read your Q. made to It was Yes, that offer A. I was. guess^t made? you accept And after your behalf, on that offer?” did husband ques- following renewed-objection to the term “on her behalf” the “ Q. ? A. I did. Q. you offer accept tions Did and answers: Q. you fifty fifty. ? was— dollars A. The dollars Did receive the you A. We re- question. (Interrupting) a minute. 1 asked a Just signa- yes.” fifty dollars, Plaintiff identified her husband’s ceived again and stated presented ture certain to her letters which were authority to write gave written that she never her husband by plaintiff’s husband A number of written letters. such letters sale, of were agent, purported contract the real estate as well as the objection plaintiff-that over the of identified and received evidence executed without letters were written contract contract authority plaintiff. The written do in behalf of so to and a constituting property which defendant relies sale following: breach of the terms of contract of insurance-is Beal Estate. Sale “Contract for Hunt'party L. S. inade and entered into “This Contract parties his part & Leona Walker wife the first and Jesse L. Walker part. of the second day this 19th part the first has party
“Witness —: That the part property his August 1940, parties of the second sold 2 Block Third Wis- Breckenridge, Mo., consisting Lots 1 & in parties net, second $500.00 consin Add. for the consideration of D. W. com- pay taxes, pay $1500 Stueker assume and also to Warranty Deed Party part to furnish mission. the first except all indebtedness and transfer the clear of Abstract down part parties $50.00 1940 taxes. The of-the second hereby acknowledged. balance of receipt $450.00 of which is made and forwarded. can be paid to be as soon as Deed and Abstract given 1, 1940. before Oct. “Possession L. “Signed Jesse Walker Stueker, Agent.”
D. W. notify Company did not testified that she Plaintiff further ref it had sold. In' property because not been' the sale of the about her called fire, plaitniff stated husband to notification about the erence testimony up night or two after the fire. Plaintiff’s agent selling had tallied about she and her husband further shows that agreed and that was aware property and had do so she husband was carrying it, on some transactions reference to and that she approved of her taking business; husband care of the that she knew he was writing, letters; did not know the contents of his that she had1never made a deed it. In still owned fifty-dollar reference to the payment proposed purchaser, made plaintiff said she never had it in her possession, but that and her she husband together jointly it was later returned.
Other evidence plaintiff’s shows that payment husband returned this to Mr. Walker after the fire. The plaintiff’s above is not all of tes timony, but it contains all part upon places which defendant particular reliance to show that agreed upon she had and authorized a sale of property. One of great counsel testified in detail in reference to
legal services rendered in behalf declaratory judg- ment suit and subsequent various proceedings history incident to the *8 general that case. In things outline these “The transpired: motion stay proceedings to declaratory judg- in the ment case was sustained judge of the circuit court in Kansas City before pending, whom it partly upon ground was that was instituted in bad faith. Thereafter, defendant proceed- instituted a ing in City mandamus Appeals Kansas pur- Court for the pose having require the court judge circuit to reinstate the case and permit go same to to trial. applied The writ for was denied Appeals the Court of and after for rehearing motion denied, applied defendant for a writ of Supreme certiorari to the application Court. This A was denied. writ of mandamus similar to sought City that in the Kansas Appeals sought Court of Supreme Court. The writ was denied action, result that history as well cause, as some of the of the is shown State rel. ex Terte, (2d) 176 depositions Mo. S. W. 25. The plain- tiff and declaratory judgment her husband were taken in the at suit the instance of defendant. Witness stated that he was familiar with what compensation would be reasonable and fair for services rendered proceedings, to Mrs. Hunt all of said and that $1500 would be a attorneys’ All foregoing reasonable fee. of the testimony plain- theory tiff’s counsel was offered on the that was relevant question pay, objection vexatious refusal and over the of de- wholly incompetent fendant that it was any irrelevant issue in the case. Mr. Stucker, called the real agent, estate who testified Breckenridge engaged
that he lived and was in the real business; that he estate and insurance knew Mr. Hunt; and Mrs. after the collection of rent for he looked their residence and their building; that he collected the rent for
store Mr. Hunt and sent it to correspondence him; had with Mr. Hunt that he relative to the sale that he talked to Mr. Hunt property; him of the wrote a letter it; about place. the tenant had an he He identified made offer on a letter he had received the tenant from Mr. Hunt about the sale to and said presented he Mr. him; the offer talked to that he later Walkpr about buying and told place Mr. Hunt a letter wrote him Mr. he Walker would place. take the He identified a letter which had received reply letter, from Mr. Hunt and after sub- to his mitting agreement here- terms Mr. Walker he entered into the Hunt; to; tofore referred copy that he mailed a of the contract to Mr. fifty money that he received dollars from Mr. Walker and sent a order for that amount moved Hunt; to Mr. that Mr. Walker never property, into the agreement but after wife their Mr. Walker’s there cleaning did a man up some work the house and he had there to do some work on the house. that after Witness testified got Mr. contract, he Hunt’s letter Mr. about the terms of the Walker agreed place Sucker, to take the he, on those terms and that Mr. signed agent any authority the contract Hunt, for Mr. any he ever had do Hunt; business was from Mr. that he all his talks him signed and all Mr. letters he received were Hunt; authority L. W. he never at time had written regard disposal from Mrs. Hunt did property; that he not know Hunt thought Mrs. owned the but Mr. Hunt property, it; purchase owned that the balance price paid was to when a deed and they were furnished to the property, abstract were furnished; never completed he never he transaction because didn’t have a chance as the house burned down.
Mr..Maupin testified that he lived in Breckenridge; that he knew property; the Hunt August that he did some work it in Sep- tember, 1940; plaster that he took some replastered; off the kitchen and *9 request that this was done at of Mr. the Walker. Mr. negotiated Walker testified that August he with Mr. .Stucker purchase property; for the to.pur- he made an offer it;
chase that he did not transpired know what between Mr. Stucker Hunts; paid fifty and the that he dollars Mr. Stucker; to that he signed paid fifty the contract evidence and dollars mentioned therein; signing that after upon the contract he went property say when; but he could not family, living there was a in the house time; anything just at the that he do but didn’t looked at prop- erty; and cleaning up, that his wife there did some and he said day Maupin preparing he had Mr. there one work; to do some other that he Mr. taking had no conversation with about possession Hunt possession property, and that he had not taken man he doing some work on the house was and there he understood from right go Mr. be all ahead; fifty Stucker that paid he would got Stucker and later it back fire; dollars Mr. after the that he and got possession a deed to never took never of it. The is in all foregoing evidence, may recital substance and seem be unduly extended until points brought raised on appeal are under consideration. At plaintiff’s the close of evidence, evidence and at the close of all the ' requested
defendant peremptory instructions the nature of directed verdict in its favor which were overruled and the case was jury submitted to upon given instructions in behalf of both parties. The verdict recited for the found issues plaitniff damages and assessed her in the sum dollars of one thousand $202; interest the sum of further found that defendant’s refusal to and willful without reasonable cause and found for in the further and of $100 additional sum penalty, and for the and further additional sum of as at- $800 torneys’ timely fees. Defendant filed motion for a new trial. Before passed judge this motion was upon the trial had been succeeded by another who considered and not passed the motion. It does appear any judgment from the record that was entered until disposed by motion court, judge at which time the new following entered the judgment: order and
“Defendant’s motion for trial new sustained as to the issues as damages delay for attorney’s fee, vexatious and for for the reason giving that the No. P-2 was instruction error because under the evidence the of vexatious refusal not have should question jury. been submitted Motion for trial overruled on new respect issue with right recovery damages for for the amount due for the destruction fire of the covered against Judgment sued on. defendant on together the verdict, with interest thereon to the date in the total sum of $1,263.37, the same to bear interest at this date at the rate ’’ per of six per judgment against cent annum defendant for costs.
.The exception an judgment entered order and duly at the appeal judg- filed notice to this court from ment so entered. appeal Plaintiff also filed notice of from the judgment delay “as to the issues as to vexatious attorney’s fees.” assignment first and point presented of error in defendant’s entering up
brief for that the consideration is erred a new .court judgment upon sustaining fot new defendant’s motion trial on the grounds being mentioned had. court without new trial appear, will sustaining
As hereafter the court erred the defend- ground ground ant’s motion on the mentioned. No other for new *10 sufficiently in appears trial record and the the court was without authority any judgment except enter in to one accordance with the jury. finding authority no The court had reduce to the amount fhe giving plaintiff opportunity of the verdict without the a to make overruling remittitur as a condition the motion for new trial. Schofield, 1169, 319 Mo. Plaintiff’s appeal v. is in 1195.] [Cazzell plaintiff appeal foregoing judgment depriving
effect an from the the in the ease. amount allowed the as the refusal point presented upon The next error and based and direct court to the sustain defendant’s demurrer to evidence argument presents verdict in chief its Defendant here its favor. in its answer. pleaded the as sustain of forfeiture the defense ;The that the evi- point argument upon assumption the rest property and her plaintiff dence shows had contracted to sell sold change in thereby during the and pendency of the occurred the possession the the in violation of interest, property title contention, chief places policy. terms of the To sustain this- was introduced alleged the of sale which upon reliance contract tending that she and evidence, testimony to show .and the terms; agreed they property her husband the stated would sell the real communication with that she was aware her husband was estate, agent so, his Even there is no evidence approved action. any agreement sell signed written whatever that the ever her she her in the answer or that ever authorized else, writing, to take agent, or husband, the real estate one subject posi- only is her for her. The evidence on that contract of sale writing, any one, in to sell did not tive statement that she authorize question, never sold. property in and that was the 1939,. part provides Statutes Missouri Section Revised brought for the sale upon . . . contract “no action shall be agreement upon the action shall of lands . . .. unless the writing thereof, be or note shall be brought, some memorandum or. therewith, person signed by charged or some other party to be lawfully authorized, and no contract for sale -him thereto binding upon principal, unless agent an shall be lands made agent writing to make said contract.” Under such is authorized case, we think it provision the above and the evidence obvious binding any valid and enforceable contract there was never property. Notwithstanding for the sale willing her sell the knew fact that she was she agent informing real writing to the estate him that husband was purchase acceptable; were es- terms of offered nevertheless real adequate authority plaintiff’s property agent had no sell under tate foregoing contract could not be en- terms of his .statute wholly inadequate against plaintiff, and it forced would enable provisions purchaser enforce contract. proposed Pease, Kirkpatrick 471, l. Mo. c. W. In the case of 101 S. land her agent husband of owner of wrote to to sell. letter, him about' the read its contents, advised with went She Nevertheless, it was ruled that approval. under the statute authority to sell the During no lawful land. agent had trial tending certain- evidence oral defendant offered show ratification
637 of the contract the con in here claims that question, and defendant fifty tract dollars payment receipt ratified virtue of of the upon purchase because price. is not available Oral ratification effective, ratification of in case be contract this unauthorized as such equal dignity must also in with writing be and of status writing Fecht, a v. agent. a would sale an authorize [Johnson 335, 185 Mo. 1077; McGroarty, 110 Mo. 83 S. W. Hawkins v. writ-, 546, 19 S. W. be ratification other than There could no 830.] ing, except estoppel such presents equitable where a case of elements appeared Kirkpatrick swpra. If Pease, the ease of v. actually money for in part called purchase received or all of the alleged an un contract that would have been insufficient to raise statute, authorized contract for the out bar of the sale of land of the proposed purchaser not unauthorized con could enforce the tract. Holland, 703; Devore, 83 Mo. Devore v. 138 Mo. [Lydick 181, 39 68; S. W. Falor, (2d) Davis v. 346 Mo. S. W. 517, 142 76.] The proposed purchaser acquired under the contract of sale no enforceable in plaintiff’s property change interest and there was no interest, of title possession or of the constitute sufficient to possession forfeiture its terms. Whatever under proposed purchaser solely ever took or had pursuance arrangement agent authority his who had no with give possession. sell not Defendant was entitled to an instructed verdict assigned part for the reasons there was no error on the refusing trial court We not to imply its demurrer. do iiitend though binding that even upon plain the contract sale were tiff, her ownership not have continued would to be unconditional and sole, meaning policy. within the We passing are not on that question. judicial policy long standing
There is a plea to the effect that a of forfeiture character not cases is received with favor. It upon disfavor, is fact suspect looked and somewhat as a in the family reputable origin pleas. conception critically Its are Genealogically, examined to ascertain its value. true it is not ac- pleas corded the status of blood brother to other valid and is not accepted firmly legitimacy existing until its established under rules adequate applicable proof of law made case. If there is a way open lawful to defeat a claimed forfeiture the courts employ will require justice may it as the interest of seem to and to the end that may unsuspecting deprived insured protection an not pur- Woodman, v. Modern chased. Mo. 343, 139 S. W. [Mathews 151.] plaintiff’s assails Instruction P-1 Defendant because authorized permitting depreciation verdict without determine in dwelling the time the between was issued and .the time of the directed the instruction that if it fire. The found insured house hypothesized facts totally destroyed, $1000, house, it was she owned the There $1000. should be for sum of then verdict *12 question that depreciation. the of Defendant insists is no of mention damages the to the measure of instruction should have conformed 1939, which prescribed in Section Revised Missouri Statutes measure property case of insured provides that'in of total loss the insured, is less what- damage of for which same shall the amount property ever the for which the depreciation value below amount issuing property may insured between the time of the have sustained policy provides the the loss. also that time of the This section deny the insured permitted property the insurer not be to shall issuing of worth the full amount was at the of the of the deprecia-i thereon, proving burden of insurance issued the inasmuch as upon the defendant. Plaintiff insists that tion shall be the upon depreciation the to de- burden was defendant show not subject, no on the the instruction is sub- fendant offered evidence upon which ject to criticism because there was no evidence made Defendant not claim that depreciation. could determine does testimony depreciation, insists that the offered evidence of willing sell on the property of to the effect that she was contract constitutes of de- proposed terms evidence plaintiff’s willing- preciation. We do not think statement of property depreciation a stated amount is evidence of ness to sell rely. above men- upon the defendant could Under statute which deny $1000 cannot that the was worth tioned defendant the. policy. question It is not a of value at the time of the issuance of rely liability might to reduce its under its upon the defendant which question depreciation a of which the policy, but it is obligated sought advantage if to show it there- defendant was showing how, in this case as There is no whatever when from. depreciated in plaintiff’s house the time respect value from what issued until the time of the loss. was As stated bane, Company case of State ex rel. court en Insurance v. “In Cox, property, Mo. 201: insurance on real in ease damage loss, shall be the amount for total the measure which the depreciation, proving and the burden insured less same was de- In the foregoing, is on view of preciation wo rule defendant.” Instruction P-1. plaintiff’s was no-error there plaintiff’s P-2, contends for error Instruction Defendant jury the issue of vexatious refusal pay. It presents au- jury not exceeding percent assess ten thorized attorneys’ the loss and reasonable fee if it found amount plaintiff’s pay loss, Company refused and that such that the re- and without reasonable cause as appear facts willful fusal man prudent the trial. to a reasonable before instruction, The criticism of the because the is that is erroneous issue of they vexatious upon ap refusal to facts as depends peared prior to the prior and not to the trial. institution suit In admitting this connection, that the defendant insists court erred evidence declaratory judgment of its of the work done suit.and subsequent counsel in connection with that action proceedings, large part being plain after performed such work tiff filed her suit. To its position sustain that the should have been limited they appeared facts consideration before the suit chiefly trial, filed instead before relies certain statements following contained‘in the court: decisions of this 118; v. Great Co., (2d) Northern Life Ins. 167 S. W. Butler [Evans Equitable Society States, Life Assurance 93 S. W. United (2d) 1019, 1026; Chicago, and Jurkiewicz v. Millers’ Nat. Ins. ofCo.
Ill., 76 (2d) S. W. cases, l. c. in its The first of these read 724.] entirety, does not support appear, view. It made defendant’s *13 as shown in the opinion, course of the there that re sorted by to legal seeking prohibition unwarranted obstruction after the suit was filed. The other two cases contain to statements question effect penalty delay that the of must for vexatious be deter by mined the attitude and conduct of the defendant before the suit brought, pronounce but such statements are not in accord with Non-Royalty ments in Co., Phoenix Shoe Co. v. Assurance 277 Mo.
399, 210 42, Aufrichtig Co., S. W. and v. Columbia National Life Ins. 1,
298
16,
by
249
917,
defendant,
S. W.
also cited
and both of
Mo.
adopt
which
by
the rule announced
court in
cases
this
Patterson v.
Co.,
App. 37,
ques
Insurance
174 Mo.
c. 44,
l.
to the effect that the
tion of
refusal
ap
vexatious
to
should be
as the facts
detefmined
pear
prudent
to a reasonable and
man
the trial.
before
6040,
1939,
Section
Revised
prede
Statutes Missouri
and similar
cessor
many
sections have been under review innumerable times and
may be
profit
cases
considered with
subject
interest
on the
of
delay
general
what constitutes vexatious
applicable
rules
t)y
jury.
the determination of such issue
One of the earliest cases
by
Supreme.
Railway
decided
Court
is Brown v.
Passenger As
Co.,
surance
prior
pay.
In
filing
to the
on
of vexatious refusal
suit
the issue
question of
changed
pleading
case defendant
as to obviate
its
so
procurement
fraud
which had been
raised
reference
they
theory that
release. The
proved
pleadings
these
delay
court ruled
payment.
tended to show a vexatious
The
all
these
competent
the evidence was
and that the
was entitled
in the settle
they might
facts and that
the issue of fraud
conclude that
skillfully
to obviate
ment
in defendant’s last answer
withdrawn
jury might
feared,
a trial
which the defendant
“and the
issue
of.an
reasonably
in the chain
conclude that this was but another link
v. Insurance
delay.”
instructive case in Keller
vexatious
Another
Fidelity &
rel.
Co.,
The latest decided en banc have come Court cases v. to our attention are ex rel. Life Insurance Co. State Continental Allen, rel. 608, 621, 303 Mo. 262 W. ex Missouri State S. State Allen, 307, 320, 839. Both Life S. W. Insurance Co. Mo. an- approval, the rule specific reference, these cases make supra. is Su- case, court There no nounced the Patterson in. preme have been decision called to'our attention or which we Court contrary to find able announced rule has delay case, determining that in vexatious supra, Patterson may they appear would to'a reasonable consider facts prudent foregoing decisions, man trial. In view of the before announcing a standard conduct appellate court ease different delay re- at vexatious determined cannot be the time which *14 garded authority as and should not be followed. authority Fay testimony case, supra, of obstructive
Under concerning legal by defendant, the and proceedings and unwarranted attorneys’ plaintiff’s for counsel the and value of fees amount competerit was all evidence. The record reveals therewith connection declaratory the judgment prior filed action was that defendant’s long thereby began it plaintiff’s suit and that course institution maneuvers; stayed pending and said action was after of obstructive plaintiff’s suit defendant elected not abide the result trial ordinary procedure, if course of defense, any, the make its it legal actions, proved all which to be resorted to numerous with- but by results, delay which the the the effect of was to merit as shown out years case for about three after it was plaintiff’s trial of instituted. foregoihg the there are some features of case this In addition find, jury de indicate, and from which could that liability pleaded and its defense denial of answer fendant’s faith, good fire 1940. occurred September were not made in A day or thereafter, two agent had notice of the loss. defendant’s It then duty became it investigate facts, of defendant to but made no denial liability by 27, 1941, until March its letter plaintiff in which stated a cer it that the void because of was agreement tain August 19, 1940, by plaintiff dated and between Jesse Evidently L-Walker for property. the sale of the the contract referred to in: by letter and answer filed defendant was .the contract which contract, its introduced evidence. That face, shows it is not a plaintiff Walker, contract between purported by agreed to be a contract W. Hunt in which he L. to sell property.” “his signed by The contract W. D. Stucker agent. as An inquiry examination of this from real contract agent estate would have revealed all facts to authority reference to the under which contract was.executed, as shown ease, evidence and defendant would have known the contract legal authority was executed without from the plaintiff. evidence,
From all the we have plaintiff no doubt whatever that jury entitled to submit to the issue of vexatious refusal to jury and that the was authorized to find obstrucion and the delay occasioned the defendant were willful and without reasonable cause and to assess authorized the statute. [Sec. R. S. Mo. foregoing authorities, Under the we conclude that 1939.] there was no error the admission of evidence relative to vexatious delay and that holding the court erred in was not en- titled to submit that issue jury, Instruction P-2 was not erroneous for assigned by the reason defendant.
Defendant complains also of Instruction P-4 which was the form of verdict jury by submitted to the the court. It reads as follows:
“The court your instructs the finding that if and verdict is plaintiff, may following be in the form (Omitting : caption) We, jury, find the issues herein for the and assess her damages in $1,000, together the sum of with interest thereon in the sum We, $-: further find that — . defendant’s refusal pay plaintiff’s loss willful, has been and without cause, reasonable find we in the further and additional sum of $- penalty,' as and for the further and additional sum of $- attorney’s fees.
“Signed ........................ ’’ Foreman. The criticism of instruction is that the court prov invaded the *15 jury directing ince of the it find plaintiff for in the sum of $1000, if plaintiff, the verdict was for and also intimated that the damages verdict should be for as recovery well as on policy. directing jury was no error in There plaintiff to1find for in $1000 if the sum of verdict be for plaintiff; nor a do we believe that by the
jury misled, jury would be misled, or that this case required presented believing form of the verdict it in it verdict damages policy. to find if it The plaintiff also found for actually following jury rendered is in the words:
“We, jury and assess plaintiff find the issues herein for the interest damages Dollars, together sum of One Thousand thereon the sum of $202.00. jury pay plain-
“We, the find refusal to further that defendant’s and we willful, cause, tiff’s loss has been reasonable without find plaintiff $100.00 the further and additional sum of at- penalty, and for the 800 dollars as further and additional sum of torneys fees.” signed by foreman. foregoing-verdict
The was unanimous that, circumstances, We think it cannot be said that under all of the jury necessary in order to did not find the facts to be found (Sec. 6040, R. damages permissible assess the under the statute S. jury, 1939), Mo. and that the form of verdict submitted erroneous; might reversibly been, while not as clear as it have was not P-2, particularly read in which when connection with Instruction. specifically permissible directed the it was how and when to.pay. to allow for vexatious refusal (cid:127) upon conclusion the whole record case is that this The defendant has trial case prejudicial not shown error materially affecting opinion We are further of merits. plaintiff the evidence was entitled to recover her loss under the aas matter of law in re because of the admissions of the defendant spect to its contract of insurance and total loss of the insured; failure, law, because of its as a matter of to make prima showing action. This on defense facie principle that appears plaintiff when it action and has cause of sustain, pleads an affirmative defense fails to judgment. is entitled to announced principle has been Parker, Dyer, often. (2d) 538, 544; v. 180 S. W. 1. c. Ford v. [Place 528, 541, 1091; Ry. 148 Mo. 40 W. Magoffin S. v. The Missouri Pacific Co., 540, 76; Mo. 15 W. Wolff v. Campbell, S. 110 Mo. 320.] unquestionably It is the law that where the in a case evidence shows proof as a matter of law is entitled to recover and the unimpeached uncontradicted, plaintiff Would be entitled to peremptory County, instruction. Jackson 349 Mo. [Coleman (2d) 160 S. W. 691.] case, At the conclusion of the evidence the defendant hav- prima ing showing failed to make at least a of the defense facie entitled, law, as a matter pleaded, to recover the loss insurance, was entitled under the to which she and there passed upon by issue of fact to at was no Having except that of defendant’s refusal loss. vexatious *16 concluded, shown, of vexatious refusal heretofore issue finding on the properly submitted and that its supported by evidence, issue of we think that according judgment entitled to a terms of the verdict. therefore, judgment We, the court entered conclude this ease and this cause remanded with direction to should reversed judgment reinstate the verdict render for the in accordance with the terms of said verdict and as of C-, Sperry, date thereof. The concurs. Commissioner so recommends.
PEE foregoing opinion Boyer, C., adopted CUEIAM:—The opinion judgment as the is reversed and the'cause court. The judg- remanded the verdict and to render with direction reinstate ment for terms of said verdict as of accordance with the the date All concur. thereof.
Byron Knight Supply Corpora E. v. Western Company, Auto
tion, William Cotton and A. (2d) E. J. Earl. 771. S. W. City Appeals. April 1,
Kansas Court of 1946.