176 Mo. App. 678 | Mo. Ct. App. | 1913
This is a suit on a policy of fire insurance. Plaintiff recovered and defendant prosecutes the appeal.
Suit was instituted, first in the circuit court of Perry county, but thereafter removed, on the application of defendant, to the-United States Circuit Court for the Eastern District of Missouri, where it was tried before a jury, and plaintiff prevailed. Defendant sued out a writ of error in the case and caused that judgment to be reviewed by the Circuit Court of Appeals of the Eighth Circuit. Upon such review, the latter court reversed and remanded-the cause with an order to the United States Circuit Court to award a new trial. Thereafter, plaintiff appeared in the United States Circuit Court at St. Louis and entered a voluntary nonsuit. After having thus taken a nonsuit in the Federal court, plaintiff instituted the present suit' on the policy in the circuit court of Perry county, but it was transferred to the circuit court of Jefferson county, through a change of venue, on defendant’s application.
By way of defense to the action, the answer sets forth the proceedings theretofore had in the Federal court, and pleads the judgment of nonsuit entered
It is argued here that, as that judgment recites, “That said defendant go hence without day and recover of said plaintiffs its costs and charges herein expended and have execution therefor,” the rights of the parties are concluded thereby and that such judgment is a final one in favor of defendant. Obviously the argument is unsound, for the reason that it omits to reckon with the preceding words of the judgment which in plain terms state that plaintiff took a voluntary nonsuit. All of the words of the judgment should be •considered together to the end of ascertaining its true purport and determining what matters were concluded thereby. The judgment of nonsuit so entered in the Federal court is as follows:
“Now come .plaintiffs by attorney and say they will no further prosecute this suit but voluntarily take a nonsuit.
“It is therefore considered by the court that the plaintiffs take nothing by their suit in this behalf and that said defendant go hence without day and recover of said plaintiffs its costs and charges herein expended land have execution therefor.”
It should be said that both plaintiff and her husband were parties plaintiff to the suit in the Federal court and therefore the judgment employs the plural number. Since that judgment, however, plaintiff’s husband assigned his interest in the policy to his wife, and the suit now proceeds in her name—that is, Clara M. Manning alone. The judgment above copied reveals a clear intention on the part of plaintiffs to voluntarily nonsuit their action, and the general words in the judgment which follows imply no more than such judgment concludes that particular suit and not the merits of the action, for, indeed, the merits were not then considered.. Our Supreme Court has said that a
But defendant relies upon the case of Francisco v. Chicago & A. R. Co., 149 Fed. 354, in which it is said a judgment identical with that involved here was declared by the United States Circuit Court of Appeals to be final in character and conclusive of all of the issues involved in the case. Though we have thoughtfully considered that case, we have been unable to discern such to be the result of the judgment there given, ‘it does not appear, from the report of the case, the form of the judgment entered there, but it is said in the opinion to have been denominated by plaintiff as a judgment of involuntary nonsuit. The court treated and considered it as such, and gave judgment to the effect that no review was allowable under the Federal practice on writ of error from a mere judgment of nonsuit, whether voluntary or involuntary, and, indeed puts the judgment on the ground that plaintiffs may institute a liew suit thereafter on the same cause .of
While it may he that the court was of opinion there that the language employed in a judgment of nonsuit should modify the meaning of the words of seeming finality hy employing the words therein “without prejudice” to plaintiffs, we do not regard that judgment as conclusive here, for the very good reason that the identical judgment of nonsuit now under review has been declared such by the same court. It appears that, in this identical case, defendant prosecuted a writ of error to the United States Circuit Court of Appeals from this identical judgment of nonsuit entered hy plaintiff in the United States Circuit Court at St. Louis. On that review, the case of Francisco v. Chicago & A. R. Co., supra, relied upon hy plaintiff, was substantially overruled. In concluding' its opinion, the court said, “As the case had not been finally submitted to the court or jury, plaintiffs were entitled to take a nonsuit, and the judgment is affirmed.” [See Connecticut Fire Ins. Co. v. Manning, 177 Fed. 893, 895.] It is obvious that court regarded the judgment now under review as one of nonsuit merely, for it so treated it throughout. There is no merit in the argument that the judgment above set out and entered in the Federal court is conclusive between the parties as one on the merits, for though it omits to employ the words “without prejudice,”, it
Touching the merits of the case, it is to be said that, though the policy was issued on January 5, 1906, the premium of forty-five dollars was not paid by plaintiffs until March 5 thereafter. The answer sets forth the condition of the policy above stated to the effect that, “If the interest of the assured be or become other than the entire unconditional, unencumbered and sole ownership of the property, . . . this policy shall be void, unless otherwise provided by agreement endorsed hereon.” Because the title of the assured was encumbered at the time the policy was issued by a deed of trust in favor of Vessells, on which something over four hundred dollars was then due, it is urged plaintiff is not entitled to recover. It is conceded that the deed of trust mentioned was then outstanding on the property; that defendant’s agent had no. knowledge of it at the time the policy was issued, and that no endorsement or agreement touching' the matter was indorsed on the policy, as contemplated in the provision of the policy above quoted. But' the evidence is conclusive that defendant’s agent became fully' apprised of the facts concerning this matter on the day following the fire. The fire occurred On January 15, and on that day or the day following, defendant’s agent was fully informed of this mortgage on the property. That such is the fact is conceded in the case, for defendant’s agent who issued the policy testified fully concerning it. Notwithstanding the fact that he possessed full knowledge of the mortgage, the agent accepted, the full premium of forty-five dollars from plaintiff on March 5 thereafter and transmitted it to the company along with other remittances covering his January account as its agent. It appears the agent, Brown, possessed full authority to issue and countersign policies and collect premiums therefor on the part of defendant. Such
But it is said, though the defendant company received and retained the premium, it was not advised of all the facts concerning the matter at the time. Obviously this cannot be true, for it is conceded its agent, Brown, who possessed full authority thereabout knew all of the facts, concerning the breach at the time the
It tkus conclusively appears from tke evidence of defendant’s agent tkat tke breack of tke condition of tke policy relied upon in defense was waived tkrougk kis acts and conduct in collecting tke premium and remitting it to tke company after kaving been fully advised concerning tke facts. Moreover, tke company, kaving received and retained tke premium witk full knowledge on tke part of Brown, its agent, wkick is imputable to it, tke principle of estoppel intervenes and precludes it from asserting tke condition so waived. Andrus v. Fidelity, etc., Co., 168 Mo. 151, 165, 67 S. W. 582; Rogers v. Connecticut Ins. Co., 157 Mo. App. 671-679, 139 S. W. 265; Bacon (3 Ed.), sec. 431.] Tkerefore, tkougk it be tkat waiver is a matter of intention, as said in Francis v. A. O. U. W., supra, and, as a rule, to be found by tke jury, tke estoppel so revealed alone precludes tke defense relied upon. This keing true, it will be unnecessary to consider tbe instructions by wbick tke issue was submitted to tke jury, for defendant’s liability on tke policy may be declared as a matter of law.
But it is argued tke judgment skould be reversed for tke reason tke court refused to permit tke introduction in evidence of tke record in tke prior case in tke Federal court between tke same parties. Obviously suck record was immaterial to tke issue kere, unless tke judgment in tke prior case was conclusive, and we kave determined tkat it was not. But it is said it appears from tke opinion of tke Circuit Court of Appeals
By another count of its answer the defendant set up, by way of counterclaim, a bill of costs, which, it is said, had accrued against plaintiff in the prior case in the Federal court and which had been adjudged thereby in favor of defendant. Under this count of the answer defendant offered a certificate of the clerk of
We see no reversible error in the record and the judgment should be affirmed. It is so ordered.