Appeal from Circuit Court, Jackson Coun- | contention requires an examination of the ty; James H. Slover, Judge. testimony. Fyke & Snider, of Kansas City, for appellant. Yates & Mastin, of Kansas City, for respondent. TRIMBLE, J. For the second time this case is here on appeal by defendant. See Patterson v. Insurance Co., 164 Mo. App. 157, 148 S. W. 448. The suit is on a fire insurance policy covering a farmhouse. The policy contained a clause that: "If the building insured be or become vacant and unoccupied without the consent of the Western manager of this company indorsed hereon, then this policy shall be null and void." There is no doubt but that the property became vacant some time, perhaps two months, before it burned on February 10, 1908. Action by Henry M. Patterson against the Plaintiff was living in Oklahoma. The American Insurance Company of Newark, N. house in question was in Jackson county, J. Judgment for plaintiff, and defendant Mo., near Independence. Plaintiff had an appeals. Affirmed on condition. agent at Independence, named Noland. Plaintiff's claim that he notified Rider, defendant's agent, of the vacancy and to put a vacancy permit on the policy is based on his testimony that on January 21, 1908, he wrote Rider, defendant's agent, at Independence, Mo., as follows: "I have been informed that my house upon which I hold American Insurance policy has become vacant. Please see that vacancy permit is placed." Defend. ant's agent Rider denied ever receiving such a letter. Plaintiff introduced in evidence a pencil copy of such alleged letter; the defendant not producing the original on notice to do so. The testimony of plaintiff that he wrote such a letter on January 21, 1908, would not appear strange were it not for the fact that on February 13, 1908, three days after his house burned, he wrote to his agent Noland, saying: "Yours of the 10th at hand saying that my house had burned down. Have you gotten any particulars in the case since writing? Now, Mr. Noland, I want you to give to me the two following points, namely, how long has the house been vacant, and have you had a vacancy permit on, or did you have a vacancy permit on Please write me when the house burned? these questions by return mail, and don't say a word to the insurance agent about this as it may cut a figure in the way of getting my insurance." [1] At the first trial, considered on appeal in 164 Mo. App., the defense was made that the house was vacant and no consent thereto or vacancy permit had been obtained, and the policy was therefore by its terms null and void. To meet this defense plaintiff urged that, before the vacancy occurred, he had an agreement with defendant's agent that, if the property became vacant at any time in the future, he would attach a vacancy permit, and therefore there was a waiver of the forfeiture in the policy as to vacancy without consent. On appeal, however, this court held that such agreement, before the vacancy, could have no effect be cause there can be no waiver of a forfeiture until after the ground of forfeiture has occurred and remanded the case for a new trial on the ground that, while plaintiff could not avoid the forfeiture because of such prior waiver, yet there was some evidence tending to show that plaintiff, after the vacancy and about three weeks before the fire, had notified the defendant's agent of the vacancy and requested him to issue and attach a vacancy permit, and, if this were true, defendant had, by failing to act, waived the forfeiture. Upon a second trial this feature of the case was litigated and a verdict for plaintiff was returned for the full amount of the policy, with interest, and $75 additional as 10 per cent. damages, and a further sum of $112.50 as a reasonable attorney's fee for vexatiously refusing to pay the amount due plaintiff. [2] Defendant contends that the case should be reversed because plaintiff's own testimony, and the conceded circumstances under which the notice and request are claimed by him to have been made, show that no On March 15, 1908, plaintiff again wrote his agent Noland as follows: "Regarding the burning of my house I hold an insurance policy for $750, of which I have been trying to adjust with the company. They have now turned my claim down and refuse to pay any part on the ground the house was vacant at the time of fire. Mr. Noland, this is rather a severe blow on a poor man like myself. Now what I wish to do is this, establish if possible more proof regarding the exact situation. Eventually I may be compelled to fight them in the courts as a last resort after all other means have failed, thereby making possible much trouble for us all. Now, Mr. Noland, I want you to assist me in this matter by trying to learn the true standing of the case as regards to a vacancy. Are you certain that there was nothing left in the way of furniture, a chair, table, stand, or other article in the building at the time of the fire, or at the time that you was there when you reported to me that the building was vacant? Such articles might establish in law an occupancy. Do you know where Mr. Green Allen, the former tenant, is; try and find out so I can write him concerning the case. The insurance agent at Independ house in case of vacancies. Suppose he must | cated and settled. In view of this fact, and have neglected to do so. Kindly learn all in view of the further fact that the jury is you can about the case and report as early perhaps the judge of the question when the as possible." truth was told, if ever, and that possibly there may be ground for attributing the inconsistency to mistake and the fallibility of human memory, and that two juries and two trial judges and three appellate judges have heretofore held with plaintiff in the matter, the writer is inclined to be reserved and conservative in his opinion on the point and to hold, not without some considerable worry and misgivings, that the obvious contradictions and inconsistencies between plaintiff's testimony and his admitted acts are not sufficient to entirely overthrow the evidence upon which plaintiff's case went to the jury. Twelve days later, on March 27, 1908, plaintiff wrote Rider, the insurance agent at Independence, as follows: "Yours of recent date was duly received, replying will state that adverse to your understanding, I was not aware that the house in question was vacant until about the time the fire occurred, this being the case along with circumstances as named in previous letter I am unable to see where I am at fault." These letters were admitted by plaintiff to have been written by him, and he stated that he tried to give Rider the true state of facts. It must be conceded by all candid minds that these letters, written by plaintiff after the fire, make his statement that he wrote the letter of January 21st sound "mighty fishy," if a colloquialism may be permitted in a judicial opinion. On March 27, 1908, he wrote Rider: "I was not aware that the house in question was vacant until about the time the fire occurred." But now he claims that on January 21, 1908, he wrote the agent saying he had been informed the house was vacant and to put a vacancy permit on the policy. When did he tell the truth? Now or then? Did he tell it when he wrote the letter of March 27th and thought it would be of some help to him to claim ignorance of the fact it was vacant, or did he tell it when he has learned it is necessary in order to recover to know of it and notify the agent of the vacancy on January 21st. It is said that, however this may be, it is a question for the jury to say whether he told the truth the first time or the last. But is there not room for a third supposition, namely, that the truth was not told on either occasion? It seems to the writer that if the effect of a failure to secure a vacancy permit can be obviated, under such circumstances as are disclosed here, then the vacancy clause in any policy can be eliminated and rendered nugatory by the plaintiff calmly claiming that he notified the agent of the vacancy and relying confidently upon the verdict of a jury to do the rest. It may be that, strictly speaking, it is a question for the jury to say whether he told the truth the first, second, or neither of said times, and consequently we have no right to interfere. This question was considered in the former decision in passing on the defendant's demurrer to the evidence, and it was held that, although plaintiff's evidence was "strongly contradicted," yet the evidence that the notice of vacancy was given was of sufficient substance to justify the resubmission of the case to the jury. Patterson v. Insurance Co., 164 Mo. App. loc. cit. 164, 148 S. W. 448. The evidence then was the same as now, and consequently the [3] Defendant contends also that if plaintiff is entitled to recover at all he is not entitled to recover more than three-fourths of the face of the policy, since the only vacancy permit in use by the company provided that, if the fire occurred while the property was vacant, the amount recovered should be only three-fourths of the loss. But this contention is based on a misconception of the grounds upon which plaintiff's right to recover is planted. The policy does not provide that, if the loss occurs while the house is vacant, the amount due thereunder shall only be three-fourths of the loss. That appears only in the vacancy permit. The suit is not based on a policy with a vacancy permit attached but on a policy in which the clause rendering it void has been eliminated by waiver, leaving it a policy for the full amount insuring the house whether vacant or occupied. The case of Sullivan v. Insurance Co., 89 Mo. App. 106, is not in point because in that case the vacancy permit had become operative. In other words, the suit in that case was on a policy with a vacancy permit attached, and hence plaintiff could recover only according to the terms thereof. The suit is not based in any manner on the permit; neither are its terms set up as matter of defense by the pleadings. The sole issue was whether the policy was in force or had become void by reason of the vacancy, and that issue depended solely on whether the forfeiture had been waived. [4] The condition in the policy as to the property being vacant can be waived the same as any other condition. Clay v. Insurance Co., 97 Ga. 44, 25 S. E. 417. If proper notice is given, the policy will remain in force until the insurer takes action to terminate the insurance. 2 Cooley's Briefs on Ins. 1657, 1658; Wakefield v. Insurance Co., 50 Wis. 532, 7 N. W. 647; Strunk v. Insurance Co., 160 Pa. 345, 28 Atl. 779, 40 Am. St. Rep. 721. The only place in which the reduction of one-fourth of the insurance appears is in the vacancy permit itself, not in the policy; and, since the vacancy permit never came into existence at all, the reduc policy was on the house for a certain amount of insurance with a clause rendering it null if the house became vacant without the consent of the company. When as found by the jury, the company was notified on January 21, 1908, that the house was vacant, it had three alternatives: First, to immediately cancel the policy and return the unearned premium; second, to consent to the vacancy and place a permit on the policy which by its terms would reduce the insurance one-fourth; third, to waive the vacancy clause in the policy by making no objection and retaining the premium, thereby leaving the policy in force for the full amount with nothing in the policy concerning vacancy. According to the verdict, this is what was done. The amount of insurance due, therefore, is the amount of the policy. In addition to the question of waiver, the trial court submitted the question of vexatious refusal to pay the loss, and the jury, in addition to a finding of $959.12 due on the policy, assessed a penalty of $75 and an attorney's fee of $112.50 under section 7068, Rev. St. Mo. 1909. In our opinion the record does not disclose any evidence to warrant the court in submitting the question of vexatious refusal to pay. question without being penalized for so doing. In other words, the facts and circumstances admitted by plaintiff are sufficient to give the company reasonable grounds for defending the suit and takes the element of vexatiousness out of its refusal to pay. If, therefore, the plaintiff will, within 15 days, file a remittitur of $187.50, being the aggregate amount of the penalty imposed and attorney's fee assessed, together with 6 per cent. interest thereon from the date of the judgment, this cause will be affirmed, otherwise it will be reversed and the cause remanded. All concur. Plaintiff, an insurance broker, having applied to defendants for insurance for a client, policies were issued, and at the end of the month plaintiff advanced the premiums for his client, and defendants paid them to the receivicies, which in the meantime had become insolers of the insurance companies writing the polvent. The client died before paying any of the premiums to plaintiff, the property was destroyed by fire, and, the insurers having become insolvent, nothing was collected thereon. Held, that, plaintiff having voluntarily advanced the premiums to defendants, and they having paid the same to the receivers of the insurers, defendants had no money belonging to plaintiff which in equity they ought not to keep, and hence were not liable to plaintiff therefor in assumpsit. [5] It is true the whole question of vexatious delay is a question for the jury, as has been decided by Keller v. Insurance Co., 198 Mo. 440, 95 S. W. 903, but it is only so when, from a general survey of all the facts and circumstances in the case, an inference can be drawn that the refusal was unjustifiable and vexatious. Keller v. Insurance Co., supra, 198 Mo. loc. cit. 460, 461, 95 S. W. 903. [Ed. Note.-For other cases, see Money Re[6] And while affirmative proof is not received, Cent. Dig. §§ 15, 21-27; Dec. Dig. § 6.*] quired to show vexatious refusal, yet the Appeal from Circuit Court, Jackson Counpenalty should not be inflicted unless the ty; W. O. Thomas, Judge. evidence and circumstances show that such refusal was willful and without reasonable cause as the facts appeared to a reasonable and prudent man before the trial; and merely because the judgment, after trial, is adverse to defendant's contention is no reason for inflicting the penalty. Blackwell v. Insurance Co., 80 Mo. App. 75. In the first trial plaintiff relied upon an oral agreement on the part of the agent that, if the house became vacant in the future, he would attach a vacancy permit. This, defendant contended, was not valid, and on appeal defendant's contention was upheld. A refusal to pay on this ground could not be held vexatious; and while plaintiff's claim that he wrote a letter to defendant's local agent notifying him of the vacancy has been upheld by the jury in the second trial, and a waiver of the vacancy clause has been thereby established, still in view of the admitted correspondence of plaintiff contradicting his claim of having written such letter, and the denial of the agent of having received it, the company had a right to litigate that Suit by Harry Walmsley against A. C. Stowell and another. Judgment for defendants, and plaintiff appeals. Affirmed. J. H. Bremerman, of Kansas City, for appellant. H. L. Green, of Kansas City, for respondents. TRIMBLE, J. This suit was instituted before a justice of the peace to recover of defendants the sum of $40.15, with interest. A man by the name of Graham, in Excelsior Springs, applied to one Morse for insurance on certain property there. Morse applied to plaintiff, Walmsley, an insurance broker in Kansas City, to procure the insurance for Graham. Walmsley placed a part of the insurance with defendants, as agents of a Western insurance company, and the rest with Fowler & Sons as agents of other companies. Policies from all these companies were issued by the respective agencies representing each. It seems that there is a custom among the insurance agents of Kansas City where insurance has been placed by them in each other's companies, to have a settlement at the end of the month, and for the one that owed the other a balance on that month's business to settle it by sending the other a check for such balance. At the close of the month, defendants, in settlement of the business between them and Walmsley, took out of the amount they owed him the amount of the Graham insurance premium, and sent him a check for the balance. Walmsley made no objection to this at the time. Before Graham paid any of the premiums, he died, and the property insured burned, and the companies in which it was insured went into the hands of receivers and could pay nothing on the insurance. Walmsley then attempted to collect the premiums from the Graham estate, but as the insurance was worthless, the probate court decided against Walmsley's claim. He then demanded of defendants payment of the amount of such premiums they had received from him; but, as they had paid them over to the receivers of the company they represented, they declined to return the money. The case was appealed from the justice court to the circuit court, where a jury was waived and a trial had by the court, and judgment rendered for the defendant, and plaintiff appealed. Appellant bases his right to recover on the proposition that, as respondent took the amount of the premiums out of the money they owed to appellant, they did so without appellant's consent, and therefore respondents are liable as for money had and received. There were no declarations of law or findings of fact asked or given. Hence we do not know precisely on what facts or theory the court found for defendant. Nor can we tell just when the insurance companies failed. But the evidence does show that in placing the insurance with respondents, appellant, Walmsley, was acting as agent for Graham. Respondents insured the property and took the premiums due thereon out of money belonging to Walmsley with his knowl six per cent." If he advanced it, he must have done so for and on behalf of Graham. And having advanced it, the respondents cannot be said to have appropriated it without his authority or consent. And when he advanced it to the agents it became money in the agents' hands belonging to the company which the receivers could compel the agents to turn over to them. The judgment is for the right party and is therefore affirmed. All concur. 1. VAN LOON v. ST. JOSEPH RY., LIGHT, (Kansas City Court of Appeals. Missouri. APPEAL AND ERROR (§ 977*)-NEW TRIAL 153*)-FILING OF AFFIDAVIT-DISCRETION OF COURT. Where affidavits in support of a new trial setting up the attempt to improperly influence the jury in favor of plaintiff were not filed within the time allowed by the court for filing affidavits, defendant and its attorneys averring that they did not learn of the attempt until after the verdict, it is within the discretion of the trial court to allow such affidavits to be filed and considered, and, having done so, his discretion cannot be reviewed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3865; Dec. Dig. § 977;* New Trial, Cent. Dig. §§ 283, 288; Dec. Dig. § 153.*] 2. NEW TRIAL (§ 163*)—ALLOWANCE-Ground. In a personal injury action, where a previous verdict had been set aside as against the weight of evidence, the granting of a second new trial must be deemed to have been based on an attempt to improperly influence the jury, where the order recited that the verdict was against the weight of evidence, that there were circumstances raising a suspicion that the jurors had been tampered with, and that the court would not disturb the verdict on the ground of insufficiency of evidence, except for the improper influencing of the jury. [Ed. Note.-For other cases, see New Trial, edge, and to which he did not object. Walm-Cent. Dig. §§ 330-332; Dec. Dig. § 163.*1 sley, therefore, in effect voluntarily paid to 3. APPEAL AND ERROR (§ 978*) — REVIEW respondents the premium for and on behalf of Graham, and then attempted to recover it from Graham's estate. In the meantime the receivers had collected this money from respondents so advanced by Walmsley, and hence it was the same as if Walmsley had advanced directly to the company enough money to pay Graham's premium, and the company, by reason of insolvency, was unable to return it. That respondents did not appropriate appellant's money to the payment of said premiums without his consent is shown by appellant's statement on which suit was brought, as it reads: "To amount advanced three years ago on Graham insurance at Excelsior Springs, Missouri, Walla Walla premium, with three years' interest at DISCRETION OF THE TRIAL COURT. The action of the trial court in granting a new trial on the ground that the jury had been improperly influenced will not be disturbed on appeal, where there are facts tending to show that the jury had been tampered with. Error, Cent. Dig. §§ 3866-3870; Dec. Dig. § [Ed. Note. For other cases, see Appeal and 978.*1 4. NEW TRIAL (§ 78*)—ALLOWANCE OF NEW TRIAL NUMBER. Rev. St. 1909, § 2023, provides that one new trial shall be allowed to each party, except where the triers of fact have erred in matters of law and when the jury has been guilty of misbehavior but there is no limitation on the granting of a second new trial upon the reasons contained in the two exceptions, and defendant, who has been granted one new trial on the ground that the verdict was against the weight of the evidence, may be granted another because of improper influences exerted upon the jury. [Ed. Note. For other cases, see New Trial, Cent. Dig. § 162-165; Dec. Dig. § 78.*] 5. NEW TRIAL (§ 140*) Ground for NEW TRIAL COUNTER AFFIDAVIT. A defendant's right to a new trial on the ground that improper influences were exerted on the jury is not lost because the plaintiff files counter affidavits denying the exertion of improper influences; a party having a right to complain of suspicious circumstances tending to show a tampering with the jury. instructions of the court; that the verdict was out of all proportion to the injuries proved, and was so excessive as to shock the conscience and indicate that the jury disregarded both the evidence and instructions and returned a verdict based on passion and prejudice rather than on the law and the evidence; that improper and unlawful methods were employed to induce members of the jury to find a verdict for the plaintiff; that one J. Elliston made certain efforts to see and influence the jury in favor of plaintiff during the trial; that he had a list of the jurors, and was endeavoring to reach them and improperly influence them in plainA new trial, sought on the ground that the tiff's favor, but that he failed to reach the jury had been improperly tampered with, need juror he was attempting to reach when disnot be denied merely on the ground that plain-covered; that, during the trial of the case, tiff and her counsel did not direct the tampering with the jury; it appearing that it was done for her benefit by volunteers. [Ed. Note. For other cases, see New Trial, Cent. Dig. 88 284-287, 289, 302, 306; Dec. Dig. § 140.*] 6. NEW TRIAL (§ 49*)-RIGHT TO NEW TRIAL -GROUND. [Ed. Note.-For other cases, see New Trial, Cent. Dig. § 97-99; Dec. Dig. & 49.*] Johnson, J., dissenting. a certain man named in said motion, and who was friendly to and apparently deeply interested in plaintiff's side of the case, was frequently in the courtroom observing the conduct and progress of the trial, consulting Appeal from Circuit Court, Buchanan with persons interested in plaintiff's case, County; W. K. Amick, Judge. Action by Freda Van Loon against the St. Joseph Railway, Light, Heat & Power Company. From an order granting defendant a new trial, plaintiff appeals. Affirmed. and frequently talked with one of the jurymen, and that said actions and conversations so aroused the suspicions of defendant's officers that one of them went to the man and told him his actions had been observed and commented upon, and that they were not consistent with disinterested motives, and re C. C. Ferrell, of St. Joseph, for appellant. Robert A. Brown, of St. Joseph, for requested him to let the jury alone and not spondent. attempt to interfere further in the case, but that said person did not comply with the request, but continued to visit saloons and theaters with said juror at night during the trial and before the rendition of the verdict; and that such facts were reported to the trial [1] Various affidavits were filed in support of and also in opposition to the motion for new trial. Two of respondent's affidavits, stating that neither respondent nor its attorneys learned of the attempt of said Elliston to reach or influence the jury until after the verdict was returned, were not filed within the time allowed by the court for filing affidavits, and objection is made by appellant to said two affidavits for that reason. These two were filed before the motion was passed on, and by permission of the court. It being within the discretion of the court whether he should allow them to be filed and considered, and he having done so, his action in that regard cannot be reviewed by us. TRIMBLE, J. Appellant sued for damages alleged to have been caused by a fall received while attempting to alight from defendant's street car. The charge is that the fall was brought about by the careless jerking or sudden starting of the car while ap-judge during the trial. pellant was in the act of stepping off. The answer was a general denial and a plea that her injury, if any, resulted from her own negligence in stepping from the car before it came to a stop. At the September term, 1908, the case was tried before Judge Ramey and a jury, and a verdict was returned against respondent for $5,700. This verdict was set aside by the trial court "for the reasons that the verdict is against the weight of the evidence, and for misconduct of the jury in arriving at said verdict." Thereafter the case was twice tried, once at the May term, 1909, and again at the January term, 1910,. each time resulting in a hung jury. At the May term, 1911, the case was tried for the fourth time, and a verdict was returned for appellant in the sum of $4,000. A motion for new trial was in due time filed, the grounds of which, among others, were that the verdict was against the weight of the evidence; that it was so grossly against the overwhelming weight of the evidence as to shock the conscience and indicate that the jury was influenced by passion and prejudice and did not consider the evidence in the case or the [2] After having said motion for new trial under advisement for some time, the trial judge sustained the same, and had his reasons therefor entered of record as follows: "All the points presented by the defendant in this motion for a new trial are overruled, except that the court says as follows: "That the verdict in this case is against the weight of the evidence, both as to injuries and as to the facts creating a liability. However, |