Petterson v. State Farm Fire & Casualty Co.

745 S.W.2d 788, 1988 Mo. App. LEXIS 218, 1988 WL 10144
CourtMissouri Court of Appeals
DecidedFebruary 9, 1988
DocketNo. WD 39450
StatusPublished

This text of 745 S.W.2d 788 (Petterson v. State Farm Fire & Casualty 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
Petterson v. State Farm Fire & Casualty Co., 745 S.W.2d 788, 1988 Mo. App. LEXIS 218, 1988 WL 10144 (Mo. Ct. App. 1988).

Opinion

GAITAN, Presiding Judge.

This case originated when the plaintiffs/appellants brought suit against defendant/respondent State Farm Fire & Casualty Company and State Farm General Insurance Company for the proceeds of two insurance policies for an alleged burglary loss. The suit was in two counts. [789]*789Count I made claim on a renter’s insurance policy issued by State Farm General Insurance Company. Count II made claim on the personal articles policy issued by respondent. In the first trial the jury returned a verdict for both defendants. Appellants appealed the original verdict only as to this respondent. On December 3, 1985, this Court reversed and remanded as to Count II and ordered a new trial. Petterson v. State Farm General Insurance Co., 701 S.W.2d 764 (Mo.App.1985). The reversal was based on an erroneous jury instruction. On retrial there was a second verdict in favor of respondent. The appellant appeals alleging the trial court erred by: (1) giving an affirmative converse instruction unsupported by the evidence, and (2) permitting testimony that was not relevant to the issue before the court. We affirm.

Appellants acquired a renter’s policy on the contents of their apartment on March 4, 1983, from State Farm agent Dale Conway. Three weeks later, on March 29, 1983, appellant Dave Petterson returned to Mr. Conway’s office to obtain additional replacement cost coverage to supplement his original policy. On April 7, 1983, a personal articles policy was issued covering specific pieces of jewelry. On July 1, 1983, appellant Dave Petterson returned to Mr. Conway’s office in order to request coverage for additional items not originally specified under the personal articles policy.

On July 13, 1983, appellants reported to the police and to agent Conway that their apartment had been burglarized. Appellants submitted their claims under both policies with an itemized list of the allegedly stolen property. Both claims were denied as a result of misrepresentation by appellants. Appellants claimed $17,937.00 in itemized stolen jewelry under the policy at issue.

Respondent denied the claim based on the misrepresentation clause in the policy which states:

Concealment or Fraud.
This entire policy will be void if, whether before or after a loss, you have intentionally concealed or misrepresented a material fact or circumstance relating to the insurance.

Kimberly McClure, an employee with An-tin House of Video at the time of the incident, testified she became friends with Dave Petterson. She further testified that Dave Petterson wanted to finance a trip to England with his wife. Petterson asked that Ms. McClure “store” some things that were going to come up mysteriously missing from his apartment. Dave Petterson specifically asked Ms. McClure to keep an Atari game, a video recorder and a microwave oven which were going to “disappear”. Ms. McClure testified that Mr. Pet-terson visited her on one occasion, at which time he suggested that she could use his microwave after the “disappearance”. Ms. McClure, already owning one microwave and not wanting anything to do with Mr. Petterson’s plan, declined to accept.

Ms. McClure testified that she learned of an alleged robbery at the Petterson apartment thorough a conversation between Mr. Wakeley (manager of Antin House of Video) and Mr. Petterson.

On cross-examination, Dave Petterson was impeached with his prior testimony that he had previously “fibbed” under oath. However, counsel for respondent carefully avoided inquiry at that point as to the specific transaction Dave Petterson “fibbed” about. Counsel for appellants, then, on re-direct examination, inquired as to what the fib concerned. After such inquiry by counsel for appellants, counsel for respondent delved further into the area. At the conclusion of all the evidence, the jury found for the respondent. This appeal followed.

Appellants claim error in the giving of Instruction No. 8 because there was no evidence that a burglary did not occur. Instruction No. 8 stated the following:

Your verdict must be for the defendant if you believe:
First, plaintiff, David Petterson, represented that a burglary occurred, and
Second, the representation was false, and
[790]*790Third, plaintiff, David Petterson, knew it was false, and
Fourth, the false representation was material, and
Fifth, plaintiff, David Petterson, intended to deceive defendant.

Instruction No. 8 was a proper affirmative converse instruction because if no burglary occurred the plaintiffs’ claim would be defeated. An affirmative converse instruction must submit an hypothesized ultimate issue which, if true, would defeat plaintiffs claim. Oliver v. Bi-State Development Agency, 494 S.W.2d 49, 52 (Mo.1973). There was independent evidence that a burglary did not occur. Kim McClure’s testimony indicated that Dave Petterson told her that certain items were going to “mysteriously come up missing” from his home. Ms. McClure testified that Dave Petterson had specifically suggested that he and his wife would be able to take a trip to England as a result of those items disappearing. In fact, Dave Petterson asked Ms. McClure to “keep some things that were going to be on that list.” McClure further testified that Dave Petter-son wanted her to store an Atari game, a video recorder and a microwave oven. Both the Atari and the VCR were reported stolen. The microwave oven was left on the bedroom floor. Clearly Ms. McClure’s testimony provides independent evidence from which it could be inferred that appellants did not have a burglary.

A review of Ms. McClure’s testimony fulfills the independent evidence requirement. Independent evidence must be established that, if believed to be true, would negate any right to recovery by the plaintiffs. Shearin v. Fletcher/Mayo/Associates Inc., 687 S.W.2d 198, 202 (Mo.App.1984). If the jury believed Ms. McClure’s testimony, they also believed that a burglary did not occur. Therefore, respondent’s affirmative converse instruction was proper.

Appellants also contend the trial court erred in allowing questions concerning “other items reportedly stolen that were not covered by the insurance policy in question....”

Evidence that appellants claimed that a VCR and an Atari game were stolen was relevant to corroborate the testimony of Kimberly McClure that the “burglary” was a scheme by appellants to obtain insurance proceeds. Evidence is relevant if the fact it tends to establish in turn tends to prove or disprove a fact in issue, or to corroborate evidence which is relevant and which bears upon the principal issue. Lawson v. Schumacher & Blum Chevrolet, Inc., 687 S.W.2d 947, 951 (Mo.App.1985).

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Related

Lawson v. Schumacher & Blum Chevrolet, Inc.
687 S.W.2d 947 (Missouri Court of Appeals, 1985)
Shearin v. Fletcher/Mayo/Associates, Inc.
687 S.W.2d 198 (Missouri Court of Appeals, 1984)
State v. Mick
546 S.W.2d 508 (Missouri Court of Appeals, 1976)
Jackson County v. Meyer
356 S.W.2d 892 (Supreme Court of Missouri, 1962)
Oliver Ex Rel. Oliver v. Bi-State Development Agency
494 S.W.2d 49 (Supreme Court of Missouri, 1973)
Watson v. Landvatter
517 S.W.2d 117 (Supreme Court of Missouri, 1974)
Vanneman Ex Rel. Vanneman v. W. T. Grant Co.
351 S.W.2d 729 (Supreme Court of Missouri, 1961)
Bowyer v. Te-Co., Inc.
310 S.W.2d 892 (Supreme Court of Missouri, 1958)
State v. Hurt
668 S.W.2d 206 (Missouri Court of Appeals, 1984)
Harris v. Quality Dairy Co.
423 S.W.2d 8 (Missouri Court of Appeals, 1967)
Petterson v. State Farm General Insurance Co.
701 S.W.2d 764 (Missouri Court of Appeals, 1985)

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745 S.W.2d 788, 1988 Mo. App. LEXIS 218, 1988 WL 10144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petterson-v-state-farm-fire-casualty-co-moctapp-1988.