77 Mo. App. 639 | Mo. Ct. App. | 1899
Defendant has appealed from a judgment of $1,500 rendered against it by the court below on account of the destruction by fire of a threshing outfit belonging to plaintiff on which defendant had issued its policy of insurance in the sum of $1,800. The cause was tried by a special judge, sitting as jury, and no instructions were asked or given. The case will be treated in the order of defendant's brief.
I. At the time the policy was applied for and issued, as well as at the date of the fire, there was á chattel mortgage covering the property given by plaintiff for a balance of the purchase price, but the debt was not then due. In the defendants by-laws — which were printed on the policy referred to therein and made a part thereof — it was stipulated that “if the interest in the property to be insured be a leasehold or other interest not absolute it must be so stated in the application, otherwise the policy will be void and will not attach." In the.plaintiff's application no reference was made to the above named mortgage; it is then contended that the policy never took effect because of the terms of the by-law just quoted.
The question then is whether plaintiff’s interest in the property insured comes within the meaning of the language, “a leasehold or other interest not absoluteif so, then the policy became void by its terms.
It is a well established rule of construction that where a particular enumeration is followed by general terms or words the latter shall be limited in their application to the same class as those specified. We have here specified “leaseholds," followed by the general words, “or other interest not absolute." These general terms then should be held as meaning other estates or titles of like, kind or character to that of leasehold. In Gaylord v. Ins. Co., 40 Mo. 13, this was the language
In Ellis v. Ins. Co., 32 Fed. Rep. 646, Judges Brewer, Love and Shiras decided a ease where the insured owned the property subject to certain mortgages which were not disclosed in the policy and where the language of the contract was: “If insurance is desired on property on leased ground, or on property of any kind in which the interest of the applicant for insurance does not amount to the entire, sole and absolute ownership, it must, in every such case, be so represented and clearly expressed in the body of the policy, otherwise there will be no liability,” etc. In the opinion — after referring to the well known fact that applications for .insurance (prepared by the companies) are directed to two principal and independent inquiries, that is, first, what is the character of the applicant’s title, and, second, what, if any, incumbrances thereon —Judge Brewer says: “It is further known that the policies and blanks for application are prepared by the insurance companies, and it is familiar law that the stipulations and provisions therein are to be construed
In Biddle on Insurance (vol. 1, sec. 685) the author, commenting generally on the various provisions, such as we have here, states it, as a rule, that “where such provisos contain no special reference to incumbrances, or to an incumbered title eo nomine, that the conditions of such provisos may be fulfilled by evidence of a title in fee, though incumbered by mortgages or liens.” To sustain the text numerous cases are cited in the footnote; among others see Hubbard v. Ins. Co., 33 Iowa, 325; Carrigan v. Ins. Co., 53 Vt. 418. The chattel mortgagor, as in this case, is considered still the absolute owner, the mortgage being a mere hen or incumbrance.
So, too, it has been held that the insured is not obliged, in the absence of a stipulation to that effect, to disclose the precise nature of his title; his policy will only be affected by a fraudulent concealment. If the company desires such information it must protect itself by inquiry or by the conditions of the policy. Morrison’s Adm. v. Ins. Co., 18 Mo. 262; 1 Biddle on Insurance, sec. 669.
In view then of the law above discussed, we hold that the policy in suit was not rendered void by reason of the provision requiring the application to disclose-
II. The next objection to a recovery is based on article 15 of defendant’s constitution, which in terms provides, that “no more than fifteen hundred dollars shall be taken in any one risk.” This is found among the provisions of defendant’s constitution referred to and made a part of the policy. Plaintiff’s policy fixed the indemnity to be paid in case of loss at $1,800 and it is now contended that by reason of this excess the entire policy is avoided as ultra vires.
This position is untenable. A complete answer thereto is found in the language of our supreme court in Bank v. Harrison, 57 Mo. loc. cit. 511: “If power be given to a corporation to do an act in a particular way, as to loan money on personal security, and it adopt a different method of performance, as by making a loan on real estate, the act is ultra vires and void. If, however, the departure apply, not to the method itself, but purely to extent or quantity in an authorized feature, then the act is good up to the limit of extent or quantity, and void as to the excess. The test inquiry is, whether part of the undertaking may be cut off, and what remains be in fulfillment of the law. Coke says: ‘Where a man doth that which he is authorized to do, and more, there it is good for that which is warranted, and void for the rest.’ ” See also 5 Thomps. on Corp., sec. 5981. In the case at bar the trial court deducted the excess of $300 and entered judg'ment for $1,500 — following the just and proper rule just announced. This was correct.
The so-called by-law, just quoted, is so unintelligible and meaningless as to justify its rejection altogether. If the defendant company sought to prohibit the taking of two or more risks within one hundred feet of each other, language clearly stating such intention should have been used. The point is without merit.
Equally without merit are objections relating to* the admission and exclusion of evidence. When the policy is considered along with the application and testimony the manifest purpose was to insure the entire threshing outfit, including all the machinery and attachments, engine, separator, feeder, weigher, stacker,, tank, etc.
IY. Lastly defendant questions the sufficiency of plaintiff’s petition. The main objection is that it fails-to allege the value of the property destroyed, or that plaintiff was the owner thereof at the date of the policy or at the-time of the fire. As to the first of these contentions, defendant’s counsel seem to rely on Wright v. Ins. Co., 73 Mo. App. 365, and cases of like character there cited. These cases correctly hold that the value of the-goods destroyed is a necessary ingredient in the petition, and should therefore be alleged and proved. As-said in Story v. Ins. Co., 61 Mo. App. 334, “the insurer is responsible only to the extent of the loss of the assured in the property insured which must be-averred in the petition and shown at the trial.”
In defendant’s answer, among other allegations it is stated, that defendant was not authorized by its constitution to issue insurance beyond two thirds of the cash value covered by the policy, “and in relation thereto” (quoting the language of the answer) “defendant avers and charges, that the actual cash value of the property insured did not exceed the sum of ‡2,100,
As a further history of the case, it is proper to state, that at the trial evidence went in without objection and witnesses were at length examined by both parties all in relation to the actual cash value of the property insured and destroyed; it seems indeed that the question as to the value of the property was the main issue tried. This, with the contest relating to the mortgage heretofore referred to, comprised the principal matters of controversy between the parties.
Even then should it be conceded that the petition was technically faulty in failing, to allege in clear, distinct language the value of the property destroyed, it would seem that defendant’s answer aided the petition and brought forward the question of value as a real issue in the case. “Defendant avers” (quoting the answer) “that the actual cash value of the property insured did not exceed the sum of $2,100.” This the reply put in issue, and hence the matter of value of the insured property became a substantial issue in the cause, and it was so tried; the parties treated this as a contested fact. At all events, when we consider this entire record, petition, answer and the testimony adduced, we think defendant must be treated as having waived the imperfections of the pleading, and the same should be held good enough after verdict. A similar matter of pleading was before our supreme court in Jones v. Ins. Co., 55 Mo. 342. Judge Napton thus states the point and the conclusions of the court thereon: “The objections to the petition are, that it nowhere alleges the value of the property insured, or that it was of any value, or that its destruction was any damage to plaintiff. The petition alleges that defendant undertook to insure the plaintiff against any loss by
The force of this decision of the supreme court is not impaired by the fact that the loss there arose from the destruction of a building (real estate) while in the case at bar personal property was insured. The statute we have now, concluding the insurance company as to the value of real property by the amount stated in the policy, was not then in force; it was not enacted until years after the opinion in Jones v. Ins. Co., supra, was rendered. The petition here is more complete in its allegations of value than the one found in the case just quoted from. Though perhaps technically defective, and such as might have been condemned on motion or demurrer filed at the proper time, yet said petition will be sustained after verdict.
“Having elected to adopt a certain course of action by and with the approval of the trial court, neither party will now be heard to say that it was not warranted by the written pleadings in the case. * *. * It can now be announced as the fixed policy of our practice
' What is here said in relation to the allegation of value applies with even more force to the objection relating to the ownership of the property. The petition alleges that plaintiff was interested in the property “as the owner thereof to an amount exceeding the amount of the insurance,” etc. This was sufficient, at least after the verdict.
Other objections to the petition have been considered and found without merit. Finding no reversible error in the record the judgment will be affirmed.