Waddle v. Commonwealth Insurance

ROBERTSON, P. J.- Plaintiff obtained a judgment on a fire insurance policy on household effects, and defendant has appealed. There have been two trials. The defenses pleaded, so far as necessary to note, are fraudulent representations inducing defendant to issue the policy and that the condition in the policy that the property should be protected only while the building in which it was located was occupied for a residence had be.en violated. We shall notice only the questions urged in appellant’s brief under the Points and Authorities, as all others are deemed waived. [Ridenour v. Wilcox Mines Co., 164 Mo. App. 576, 599, 147 S. W. 852.] It is said that the trial court erred in overruling the motion for a new trial which charged “That perjury was committed by witnesses for the plaintiff in matters material to the issues of the case.” The motion, on this point, was undertaken to be supported by an affidavit filed almost three months later, but before the motion was overruled; and we are now asked to compare a transcript of the testimony at the first trial of the case, as to the plaintiff and some of her witnesses with their testimóny in the last trial, all set out in the abstract of record here, and convict the trial court of reversible error. The trial court was not furnished a transcript of the testimony of the witnesses in the first trial. We cannot convict the trial judge of error in passing on something that was not submitted to him. If the proceedings had been [575] regular we may suggest, without deciding, that the motion is granted on this ground in the same manner as for the reason that the verdict is against the weight of the evidence and can only be reviewed when the trial judge abuses his discretion. [Dean v. Wabash Railroad Company, 229 Mo. 425, 452, 129 S. W. 953, and Scott v. Railway, 168 Mo. App. 527, 531, 153 S. W. 1058.] In the second trial the stenographer who took the testimony on the first trial was on the witness stand and was asked about some of the testimony at the former trial. No doubt defendant could have, in this manner, obtained all of the testimony at the former trial that was thought to be iu conflict with that of the witnesses in this trial and thereby had the jury pass on all of the alleged perjury he charges here, if it had so desired. This assignment of error is ruled against appellant. The defendant undertook to show a conspiracy to defraud defendant between plaintiff, another party and a party who hauled some of plaintiff’s goods to the house where the fire occurred. Complaint is now made that the court did not permit him to go fully into the relations of these two parties, other than plaintiff. The jury was instructed as to plaintiff’s connection with any such conspiracy and since there was a finding that she was innocent it can make no difference in this case what the relation was of the Other two alleged conspirators. Defendant complains that a witness used a copy of a bill of lading to refresh her memory, but the witness only identified the goods therein described and no objection was made on that score. An objection is made that witnesses were permitted to testify as to the plaintiff’s reputation for honesty, etc., but a reference to the record discloses that no witnesses so testified. The questions were asked, the defendant objected and they were not answered. [576] Defendant insists that an instruction defining “occupied as a residence” given in behalf of plaintiff is in conflict with one given for defendant. The plaintiff’s instruction, so far as necessary to quote, reads that “the term ‘occupied as a residence’ as used in said policy does not mean that the plaintiff must have actually remained in person in said house constantly both by day and by night, but if you find that she in good faith had moved her household goods in said house for the purpose of residing therein, and that from the time she had moved said goods into said, house until the fire she had been engaged in the daytime in arranging said goods in said house for the purpose of dwelling therein as her home and that she actually remained in said house for such purpose during the daytime, and was only temporarily absent therefrom at night, then said house was occupied by her within the meaning of said term of said policy.” The defendant’s is as follows: “'the word ‘occupied,’ as used herein, means the presence of a human being or human beings in the said buildings as their customary place of abode, not absolutely and uninterruptedly continuous, hut that it must he a place of usual return and habitual stoppage. So, unless you find and believe from the evidence in this case that the house referred to in said policy was the habitual place of stoppage of the plaintiff and her usual place of return or her customary place of abode from April 5, 1911, the date the policy was issued to the date of the destruction of the building by fire, your verdict will he for the defendant.” There is no conflict in these instructions and as it is not claimed that the plaintiff’s instruction does not declare the law no further comment is necessary. The verdict of the jury allowed $150' attorney’s fee and $63.28 as damages for vexatious refusal of defendant to pay the loss. During the progress of the trial plaintiff, over defendant’s objection, offered in [577] evidence, for the purpose then stated of showing vexatious delay, the files in the case, different answers, motion to quash summons and applications for continuances. It appears fiom the abstract of record that the motion to quash was sustained. Amended answers are filed by leave of court (Section 1848', R. S. 1909). If the applications for continuances were granted then 'they were properly filed and if refused no delay was necessarily caused by them. Error was committed by the court in admitting these things in evidence at all for this purpose. Section 7068, R. S. 1909 (Amended Laws 1911, p. 282) provides that the damhges and attorney’s fee are allowable for vexatious refusal to pay and this may not contemplate penalizing the defendant for conduct after an action brought to- recover the loss. This latter question is not, however, before us as the record does not disclose that defendant did anything in defense of the case in connection with these files that it did not have a perfect right to do. Unless plaintiff will cure this error by remitting the amounts allowed as attorney’s fee and damages within ten days after this opinion is filed, amounting to a total of $213.28, the judgment will be reversed and the cause remanded, otherwise it will be affirmed. Farrington and Sturgis, JJ., concur.