Brown v. Connecticut Fire Insurance , 197 Mo. App. 317 ( 1917 )

BECKER, J.

This is an action brought by Rachel Brown against the Connecticut Fire Insurance Company, of Hartford, Connecticut, to recover a proportionate amount of the damage caused to her home by fire, said home being covered by a policy of insurance issued by the defendant company. There were several other policies of insurance on the said property, one of which was issued by the Providence-Washington Insurance Company, whom said Rachel Brown sued in a separate action, judgment in which case by stipulation of counsel is to abide the result in this case. On trial before a jury, a judgment was rendered in favor of the plaintiff and against the .defendant in the sum of $915; $650 of this amount being the proportionate part of the estimated amount of damage'by fire, together with interest on such sum, and the remainder, $265, being for attorneys’ fees and damages. On motion for a new trial the court ordered that said motion be overruled upon the plaintiff entering a remittitur of $265. The remittitur was made and judgment duly entered against the defendant, appellant here, for $650, from which judgment defendant appeals.

Plaintiff’s petition contains a general allegation of ownership of the property insured. .The defendant, in its second amended answer denies that plaintiff was the owner of the property at the time the policy was issued, or at the time of the fire, and alleges that the legal title to said property was at all times in question in plaintiff, Rachel Brown and H. G. Brown, her husband, as tenants by thé entirety. Plaintiff by way of reply alleges that she was in point of fact the real and equitable owner of the said property, that the property had been purchased with property and moneys belonging. exclusively to her and that if the legal title thereto appeared in her name and that of H. G. Brown, her husband, as tenants by the entirety, the said H. G. Brown held only the legal title thereto and held same in trust for plaintiff.

The policy of insurance contains a clause which provides that it should be void, “if the interest of the insured be other than unconditional and sole ownership.” And it also provides that the policy shall be void, “if with the knowledge' of the insured foreclosure proceedings be commenced, or notice given of sale of any property covered by this insurance by virtue of any mortgage or trust deed.” (Italics ours.)

The facts developed at the trial show that Rachel-Brown, the plaintiff, was unable to read or write; that plaintiff 'had, with property and moneys belonging to her, in 1904, purchased a home, but that the deed was made out in the name of said Rachel Brown and H. G. Brown, husband and wife. This fact, however, was unknown to the plaintiff until April, 1907; when she learned of the fact that the property was not in her name, her husband agreed to rectify the matter, and they jointly, as husband and wife, made out a deed for the property to one Howey and wife who were in turn to deed the property back to the plaintiff. Again, though the connivance of the husband, the Howeys conveyed the property to Elletta Russell, a sister of plaintiff’s husband, without the knowledge, and in fraud, of said plaintiff, the husband reporting that the property had been conveyed to her as agreed upon. Some five or six months after-wards, in some manner not shown in the abstract of the record, the plaintiff learned of the fact that the deed had been made to Elletta Russell and not to her. Upon the insistence of plaintiff, the said Elletta Rnssell made a deed which the husband of plaintiff assured plaintiff conveyed the property to her, but, as before, through the connivance of her husband, said deed conveyed it instead to the plaintiff and her husband, as husband and wife. Plaintiff first learned of this last fraud however only when defendant filed its amended answer herein.

One Fred B. Murphy held a deed of trust upon the property and just prior to the occurrence of the fire, default having been made in the payment of the principal note secured by the said deed of trust, said Murphy had advertised the property for sale. Murphy notified the husband of plaintiff that he was so advertising the property, and plaintiff’s husband came in to see him. The defendant offered to prove by said Murphy that plaintiff’s husband, at the time of his visit, asked Murphy to hold up the sale of the property temporarily in order to enable him to negotiate a new loan elsewhere, and that he also asked, in the event of a new loan being made, if Murphy would be willing to turn over the papers without marking them paid, and that Murphy assented thereto. The court, upon objection of plaintiff, excluded the proffered testimony. According to plaintiff’s own testimony, and it is undisputed, she knew nothing of the property being advertised for sale, and that while her husband had attended to the making of the deed of trust in question, her husband, without her authority, had done many things which she did not know of, and that her husband had left for parts unknown some time prior to the trial. Plaintiff also testified that defendant had never tendered back to her any part of the premiums paid on the policy sued on.

1 The first assignment of error on the part of the appellant is that the trial court erred in overruling defendant’s motion to strike out that part of plaintiff’s reply in which it is pleaded that plaintiff had an equitable title to the property. Appellant insists that respondent’s reply, which sets up an equitable ownership of the property in question in respondent, is a departure from the original cause of action set out in plaintiff’s petition and does, in effect, change the suit into an action in equity instead of one in law.

Section 1809, Revised Statutes of Missouri, 1909, specifically provides that where the answer contains new matter, the plaintiff shall reply thereto denying generally or specifically the allegations controverted by him, and that plaintiff may allege any new matter not inconsistent- with the petition, constituting a defense to the new matter in the answer.

The allegation set up in the reply of equitable ownership was no departure from the original cause of action set out in the petition. ' The petition contained a general allegation of ownership of -the -property in question, which allegation was broad enough to permit plaintiff to show either a legal or an equitable title thereto. Nor can the rep’v be held to be an abandonment of the cause of action set up in the petition, nor viewed as an entirely new cause of action, as aippellant argues.. We can view plaintiff’s reply only in the light of an allegation of facts in avoidance of the allegation in defendant’s second amended answer, that the legal title was in the husband and wife by an estate in the entirety.

We therefore hold that the trial court properly overruled defendant’s motion to strike out that part of plaintiff’s reply.

2. Appellant next argues that even if its motion to strike out wras properly overruled, the plaintiff could not recover in view of the matter set up in her reply, in that the policy contained a provision that, “this entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the interest of the insured-be other than sole and unconditional ownership.”

The uncontradicted testimony in the case shows that the property in question was purchased with the property and moneys of the plaintiff, but that the husband of plaintiff, instead of having the deed made out in her name alone, as he was instructed to do, had the deed made out in their joint names as husband and wife; that some years later, upon the plaintiff discovering that fact, a deed was executed by th plaintiff and ber husband jointly as husband and wife to a third party with the intention of having the third party reconvey the property in question back to the plaintiff; that again when the ■new deed was made by the third party,- instead of the deed being made in the name of the wife, the plaintiff herein, it was- made to the sister of the husband of plaintiff, and when plaintiff again discovered this deception the husband had his sister make a new deed-, which he assured plaintiff (and it must be remembered plaintiff could neither read nor write) conveyed the property to her, but, in point of fact, the deed conveyed the property to the plaintiff and the said husband, as husband and wife, which fraud was unknown to this plaintiff until the fact was brought to her attention by the defendant’s second amended answer filed in this case.

The equitable title was clearly in plaintiff, though the legal title was held by plaintiff and her husband in an estate by entirety. Plaintiff had the equitable title at the time the insurance was'written and she was possessed of that same interest in the property at the time of the loss, and no showing having been made of any fraud practiced, or intended, by the plaintiff in this respect, we hold plaintiff’s ownership was' sufficient to satisfy the requirement of the said clause in the policy. [Nute v. Insurance Co., 109 Mo. App. 585, 83 S. W. 83; Lingenfelter v. Phoenix Ins. Co., 19 Mo. App. l. c. 268; Gaylord v. Lamor Fire Ins. Co., 40 Mo. 13.]

3. Appellant’s next point is that clause in its policy of insurance which provides, ‘ ‘ This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void, if with the knowledge of the insured foreclosure proceedings be commenced, or notice given of sale of any property covered by this policy, by virtue of any mortgage or deed of trust.” ■

It is.undisputed that, prior to the fire, under which damage or destruction of the property covered by the policy is claimed, the property in question was advertised for sale under a deed of trust.

It is a well recognized rule of law in this State that a provision in a policy of insurance such as the one under discussion, must he given as favorable a construction to the insured as is reasonably possible, and the ground upon which this rule rests is that such' provisions are put in the policy at the direction of the insurance company for its protection and benefit, the policy being issued as the business of and for profit of the company. [Mathews v. Modern Woodmen, 236 Mo. 326, 139 S. W. 151; Rochester Mining Co. v. Maryland Casualty Co., 143 Mo. App. 555, 128 S. W. 204; Century Realty Co. v. Frankfort Marine Ins. Co., 179 Mo. App. 123, 161 S. W. 624; Stix v. Travelers’ Indemnity Co., 175 Mo. App. 171, 157 S. W. 870; Long Grocery Co. v. U. S. F. & G. Co., 130 Mo. App. 421, 110 S. W. 29.] '

Webster’s dictionary defines “knowledge? as “the act or state of knowing; clear perception of fact, truth, or duty.” In the Century dictionary we find this definition : ‘ ‘ the state of being or having become aware of fact or truth; intellectual recognition of or acquaintance 'with fact or truth.”

Knowledge, then, is information, meaning, having information as to a fact. Viewing the word “knowledge” in the clause in the insurance policy in question in light of these definitions, the clause applies where the insured has actual knowledge of the foreclosure proceedings having been commenced, or notice given of the sale of the property insured under a deed of trust.

The only direct testimony on this subject found in the .record is that of the plaintiff herself which is as follows: “I had no knowledge before the fire that my house was ever advertised for sale under a deed of trust. The first I knew about it was several days after the fire when some neighbor children got into dispute with my girl. They threw it up at her and she came in and told me. That was the first I knew of it.”

This testimony standing uncontradicted, and holding as we do that actual knowledge on the part of the insured is necessary in order to void the policy under the said damages for outlays expended in the preservation of clause, 'defendant clearly fails to make this defense available to it.

4. "We are of the opinion that, with reference to the question of agency of the husband for the wife, this case falls within the ruling of the case of Eystra v. Capelle, 61 Mo. 578, as construed in Kuenzel v. Stevens, 155 Mo. l. c. 285-287, 56 S. W. 1076, as applying where Lhe question is one of implied agency, namely, “to establish an agency of the husband on behalf of the wife, the evidence must be cogent and strong and more satisfactory than would be required between persons occupying different positions.” [See, also, Long v. Martin, 152 Mo. 668, 54 S. W. 473.]

Holding as we do that actual knowledge of the wife was necessary to void the policy under the clause set out above, it was not prejudicial error for the court to have refused the testimony proffered by the defendant on the question of the husband’s agency, particularly when such proffer was merely statements of the husband (the wife not being present) without any suggestion even that such statements would be shown to have been made with the knowledge or consent of the wife.

This is particularly true under the facts in this case, where it is shown that the husband had done many things with reference to the wife’s (plaintiff’s) property that were not authorized by her. The trial court properly excluded the testimony offered. [See Bank of Ravenna v. Dobbins, 96 Mo. App. 693, 70 S. W. 1089.]

A careful reading of the record in this case shows there was no substantial evidence adduced from which the husband’s agency in this particular transaction could be fairly or reasonably inferred, and we therefore hold this question was not one for the jury.

5. "We have carefully considered the other points raised in the briefs, but we do not regard them of sufficient merit to warrant discussion in the opinion. "We find no error in the instructions given, and none in the action of the court in refusing the instruction requested by defendant and of which complaint is made.

We find no error in the record. The judgment of the circuit court is affirmed.

Reynolds, P. J., and Allen, J., concur.