Citation Numbers: 36 Mo. App. 560
Judges: Smith
Filed Date: 5/20/1889
Status: Precedential
Modified Date: 7/20/2022
— This case was here on a former occasion (29 Mo. App. 676); when all the questions of law arising in it were determined. The judgment was reversed and the cause remanded to the circuit court of Livingston county, with directions to that court to hear proofs as to the value of the flour destroyed and to make the adjustment accordingly. In pursuance of this direction the circuit court did hear proofs as to the value of the flour, and thereupon rendered judgment against defendant for four hundred dollars, the amount of the policy sued on.
The defendant appeals from that judgment. The defendant contends here that the judgment of the court below is against the law and the evidence. We are not persuaded that this contention is well grounded. If
At the time of the loss, the plaintiffs had no concurrent insurance on their flour. The concurrent insurance, if it was such, that they had effected in the Glen Falls Company had terminated as to their flour by reason of the sale of the merchandise and the assignment of the policy. This was a practical withdrawal of the flour from under the cover of that policy. Blackburn, the assignee of the Glen Falls policy, did not acquire any interest in the flour at the time of, or subsequent to, the assignment of the policy to him. He had no insurable, or other, interest therein at the time of the loss. The policy, we think, was inoperative as to the flour at the time of the loss. Wood on Ins., sec. 251.
The assignee then could not have recovered on this policy for the loss of the flour. Nor could the plaintiffs, the assignors, for the manifest reason that they were not parties to it, in any way after its assignment and after it had in effect become a new contract of insurance. Now can it be said that the plaintiffs at the time of the loss had concurrent insurance on their flour amounting to eight hundred dollars in the Glen Falls Company and it was the bounden duty of the circuit court in adjusting
The defendant contends further, that this court held when here before that there existed concurrent insurance on the plaintiffs’ flour. This is not our understanding. We then simply decided that the provisions permitting eight hundred dollars’ insurance had not been wrongfully and fraudulently inserted in said policy issued by defendant to the plaintiffs.
There were no instructions given or refused by the court, and we can not tell upon what particular theory the circuit court proceeded in determining the issue of fact.
If, however, it proceeded upon the theory which we have just been considering and that theory should be deemed unsound, which we do not think is the case, still inasmuch as the plaintiffs are admittedly entitled to recover the whole amount of said policy of four hundred dollars for their loss, the defendant is not harmed by the judgment of the court therefor, since if its contention is well founded that there is concurrent insurance and that such insurer is liable with it for the amount of the plaintiffs’ loss, it will have on payment of such loss a claim over against the alleged other insurer for its proportion upon the principle that concurrent insurers are identical in interest. May on Ins., sec. 13. .
The judgment of the circuit court is, we think, for the right party, and will be affirmed.