Joiner v. Auto-Owners Mutual Insurance Co.

891 S.W.2d 479, 1994 Mo. App. LEXIS 1811, 1994 WL 664364
CourtMissouri Court of Appeals
DecidedNovember 22, 1994
DocketNo. WD 46916
StatusPublished
Cited by6 cases

This text of 891 S.W.2d 479 (Joiner v. Auto-Owners Mutual Insurance Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joiner v. Auto-Owners Mutual Insurance Co., 891 S.W.2d 479, 1994 Mo. App. LEXIS 1811, 1994 WL 664364 (Mo. Ct. App. 1994).

Opinion

BRECKENRIDGE, Judge.

Charles William Joiner and Mary Lynn Joiner1 appeal from the trial court’s judgment, rendered after a jury trial, denying their claims against Auto-Owners Mutual Insurance Company for proceeds of an insur-[480]*480anee policy and damages for Anto-Owners’ vexatious refusal to pay when a fire destroyed the Joiners’ home. The Joiners raise three points on appeal, contending that the trial court erred (1) in not giving Instruction 36, a written instruction advising the jury that it could consider certain hearsay evidence only on the issue of whether Auto-Owners’ refusal to pay was vexatious; (2) in giving Instructions 9, 15, 21, 27, and 33 because those affirmative defense instructions did not require a finding of materiality with regard to the alleged misrepresentation made by the Joiners concerning the origin of the fire; and (3) in giving Instructions 15, 21, 27, and 33 and Instructions 14, 20, 26, and 32 because those instructions constituted an improper multiple submission of the same defenses.2 The judgment of the trial court is affirmed.

On April 5, 1989, fire destroyed a house owned by the Joiners in Linn Creek, Camden County, Missouri. Prior to the date of the fire, Auto-Owners had issued an insurance policy to the Joiners providing coverage for certain fire loss of the house. - After the fire, Auto-Owners did not pay out the proceeds of the insurance policy to the Joiners. Consequently, the Joiners filed suit against Auto-Owners, seeking in their first amended petition $51,150 for the loss of them dwelling, $23,500 for the loss of the contents of the house, $9,300 for them additional living expenses, $5,000 for their efforts in removing debris from the fire, and $13,343 for the vexatious refusal of Auto-Owners to pay the insurance proceeds. Auto-Owners defended the case by asserting the affirmative defenses of arson and misrepresentation.

The ease was tried to a jury in June of 1992. The jury found in favor of Auto-Owners on all of the Joiners’ claims and the trial court entered judgment for Auto-Owners and against the Joiners. The Joiners now appeal.

I.

As their first point on appeal, the Joiners assert that the trial court erred in refusing to give an instruction limiting consideration by the jury of certain hearsay evidence to the issue of vexatious refusal. During the trial, there were admitted into evidence several reports compiled by Ken Johnson, the fire cause-and-origin expert hired by Auto-Owners to investigate the Joiners’ house fire. The reports of Mr. Johnson included transcribed statements of Maizy Morgan, the aunt of Mr. Joiner, and Barbara Muscia, the daughter of Ms. Joiner, whom Mr. Johnson had interviewed as part of his investigation. Ms. Morgan told Mr. Johnson that about thirty to sixty days before the fire, Mr. Joiner brought some guns to her house and asked to leave them with her “for safe keeping.” According to Ms. Morgan, Mr. Joiner often brought items to her house and left them with her “until their problems smoothed out.” Ms. Morgan stated that Mr. Joiner had told her at the time he brought the guns to her house, “Mary and I are getting a divorce again.”

Ms. Muscia told Mr. Johnson that Ms. Joiner brought her poodle to Ms. Muscia’s house and left it there a few days prior to the fire. Ms. Muscia stated that Mr. and Ms. Joiner “couldn’t get along about the dog,” that Mr. Joiner “kept talking about killing the dog,” and that Ms. Joiner brought the dog to Ms. Muscia’s house because she “didn’t want [Mr. Joiner] hurting it.”

The trial court admitted the reports containing the statements of Ms. Morgan and Ms. Muscia over the objections of the Joiners’ counsel because the statements were relied upon by Auto-Owners in making its decision not to pay the Joiners’ claims. When the report containing Ms. Morgan’s statement was admitted into evidence, the trial court instructed the jury as follows:

Thank you. Ladies and Gentlemen of the Jury, there have been objections to Exhibit 55, and they are sustained in part and overruled in part. You may consider the contents of Exhibit 55 and attachments when determining Plaintiffs’ claim that De[481]*481fendant’s refusal to pay was without reasonable cause or excuse but not on any other issue.

When the report containing Ms. Muscia’s interview with Mr. Johnson was admitted into evidence, the trial court stated to the jury:

And [counsel for the Joiners] has objected to Exhibit 56 and portions attached.
The objection is sustained in part and overruled in part. You may consider Exhibit 56, and specifically this attachment to which this question refers, when you determine Plaintiffs claim that Defendant’s refusal to pay was without reasonable cause or excuse, but not on any other issue. So it’s limited to that.

During closing argument, counsel for Auto-Owners referred to the statements made by Ms. Morgan that were included in Mr. Johnson’s report:

[The Joiners] both told us Mary liked the house. We go talk to Charlie Joiner’s aunt, Maizy Morgan, and she said Mary hated the house. She didn’t want to live there, and had been saying that for a long time. They both tell us they’re getting along. We go talk to Maizy Morgan, and remember her voice? I believe the lady. I believe the lady. She said they’re getting divorced.
They tell us the guns are going over to Maizy’s because of the kids. Maizy tells us — had no reason to he — Charlie’s own aunt — “The guns are over there because they’re getting divorced.”

The Joiners’ attorney interrupted Auto-Owners’ closing argument with the following request:

Excuse me, Your Honor. If you’ll forgive me. Your Honor gave a very limited instruction with regal’d to this kind of evidence, that it was to be used with regard to the vexatious refusal to pay only. That was the instruction the Court repeatedly gave. And I ask now that the Court repeat that instruction to the jury.

After a discussion outside the hearing of the jury, the trial court said, “Let me handle it this way. I’ll tell them that they must remember the instructions given, and I will tell them that Ms. Morgan’s statement was included in that instruction.” The attorney for the Joiners responded, “That’s fine, Your Honor.” The proceedings then returned to open court, and the trial court informed the jury, “Ladies and Gentlemen of the Jury, please remember the instructions that were given during the course of the trial. And the Maizy Morgan statement was given with reference to an instruction limiting the consideration to the refusal.”

At the end of the closing arguments but before the case was submitted to the jury, the Joiners tendered Instruction 36, which read as follows:

You are instructed that the statements of defendant’s counsel during closing argument as to statements made by Charles Joiner’s aunt Maysia Morgan and Mary Joiner’s daughter to Ken Johnson may not be considered by you as proof that those statements were true but may be considered by you only in connection with the claim of the defendant that its refusal to pay was not vexatious and therefore was not liable for the penalty referred to in other instructions.

The trial court declined to submit Instruction 36 to the jury. The Joiners claim

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Bluebook (online)
891 S.W.2d 479, 1994 Mo. App. LEXIS 1811, 1994 WL 664364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joiner-v-auto-owners-mutual-insurance-co-moctapp-1994.