48 Mo. App. 393 | Mo. Ct. App. | 1892
On November 5, 1888, the defendant by its policy insured for the period of one year one W. G. Nicum against loss or damage by fire on his farmhouse in Audrain county, “loss if any payable to George Kabrich, mortgagee, as his interest may appear.” On August 18, 1889, the building was destroyed by fire. Subsequently, the mortgagee Kabrich brought this suit. In his petition, and all in one count, in addition to the usual allegations common to actions at law on the contract of insurance, it was further alleged that certain conditions printed in the body of the policy and relating to the occupancy, transfer of the property, etc., were wrongfully fraudulent, or by mistake inserted, and the court was asked to strike out such conditions, and reform the instrument. The defendant moved and the court required the plaintiff to elect upon which of the two causes of action, thus set out in one count, he would proceed to trial. The plaintiff elected to try the action at law on the policy, and thereupon the court struck out the matter relating to a reformation of the contract.
Among other matters of defense, the answer set out that by the terms of the policy if the title of the property was, after the issuing thereof, transferred or changed without the written consent of the company indorsed on, the policy, then said policy should be void. The evidence showed unquestionably that about two months after the policy was issued the assured Nicum did sell and convey the property to one Kelley, and to this the defendant company had not consented, nor, indeed, had any notice. At the close of the evidence the court instructed the jury as follows: “The court instructs the Jury that the deed read in evidence, from W. G. Nicum 'to Julia A. Kelley, conveyed the property insured after the issue of the policy, and before the fire, and that fact, under the terms of the policy, rendered it void, as the company failed to consent thereto in
From a verdict. and judgment for' defendant plaintiff appealed.
I. The court correctly 'required plaintiff to elect upon which of the two causes of action, stated in one count of the petition, he would proceed to trial. Clearly plaintiff had intermingled in one count the two causes of action ; one to reform the policy, which was equitable, and triable alone before the court, and the other an action at law on the policy, which was triable by a jury. While the code permits the joining of legal and equitable suits, yet they must be separately stated and relief separately prayed, so that each may be separately tried, the one by the court and the other, if desired, by the jury. Henderson v. Dickey, 50 Mo. 161. He might with propriety have amended his petition and separated the two causes into two distinct counts, and then tried each separately. But he failed to amend, and chose to submit his case on the one count, — the legal action on the policy; thereby in effect abandoning the cause in equity. Electing to prosecute one of the two causes of action (which have been erroneously combined in one count) is necessarily the abandonment of the other. The plaintiff then having relinquished the suit to reform the policy, he was not entitled to introduce evidence only pertinent thereto; and, hence, the court did not err in excluding such proffered evidence. And this answers counsel1 s point number 2.
II. The conveyance by the assured Nicum to Kelley was a change or transfer of title within the meaning of the policy ; and, because of want of notice to defendant, and its consent thereto, must be held as avoiding the policy. The contracting parties in this insurance were Nicum and the defendant company; Kabrich is only the party designated to receive the loss entailed by Nicum, the owner of the property. Kabrich’s rights