Breckinridge v. American Central Insurance

87 Mo. 62 | Mo. | 1885

Sherwood, J.

The plaintiff sues on a policy of insurance, number 2,081, issued by the defendant company, assigned to him by one A. P. McMillan, to whom the policy was issued on property described therein as 11 on his two-story shingle roof frame building, occupied by tenant as a dwelling situated on the east side of Elm ■street, Jefferson City, Cole county, Mo., reference had to application and survey number 2,081, on file, which is his warranty, anda part hereof.” The application for insurance thus referred to in the policy, and made a part thereof, states that the lot was “ known as the lot conveyed by Abraham Flood to W. H. Payne.”

The deed from McMillan to plaintiff described the property as a certain lot in Jefferson City, etc., “ beginning at a point on the northwest corner of out lot thirty-four, on Chestnut street, opposite Elm, and running southwest two hundred and' thirty-three feet and ten inches; thence at right angles one hundred and twelve feet and ten inches, parallel with the line between lots thirty-four and thirty-seven ; thence northeastwardly, parallel with Chestnut street, two hundred and thirty-three feet and ten inches, thence northwestwardly by west two hundred and twelve feet and ten inches, to the place of beginning.” Objections were taken to this •deed being read in evidence.

I. It is impossible for this court, from an inspection of the description contained in the deed, and that in the policy, to determine whether there is any material variance between the’two descriptions. Counsel inform us that Elm street runs from the eastern to the western limits of Jefferson City, and that Chestnut street rung from the northern to the southern limits of the city, and hence it is an utter impossibility for the house to be located on the east side of Elm street. There was no evidence on this point, and we certainly cannot take judicial notice of the streets of this city, nor of their directions, etc.

The deed does not say whereabouts on out lot thirty-four the bouse is, and if Chestnut street is “ opposite Elm,” that maybe a parallel street to Chestnut street, and the out lot thirty:four may extend between two streets, and the house may be on the east side of Elm; Besides, the application for insurance, referred to in' the policy, says the lot was “ known as the lot conveyed by Abraham Flood to W. H. Payne,” and extrinsic evidence identified the lot as being known as the Payne lot, and that it had been sold to McMillan by Payne. Moreover, leaving the deed and its description out of view, granting that it was as defective as defendant claims-, still, considering all the circumstances attendant on the transaction, plaintiff can maintain his action, if he may be regarded as in receipt of a legal assignment of McMillan’s interest in the policy, and as the equitable assignee of McMillan’s interest in the land. And the same particularity of description of the land is not required in a case of this sort, as in an action of ejectment for the land.. The suit is on the policy, and evidence reasonably* tending to establish that the house insured was on the land conveyed is sufficient. Taking all these things into consideration, we rule the point against the defendant..

II. A similar ruling will be made as to the deed-being acknowledged before a justice of the peace of Laclede county. The deed was valid between the parties without any acknowledgment. Harrington v. Fortner, 58 Mo. 473.

III. Relative to the rejection of testimony that “the house was in bad repute, and had the reputation of being a . bawdy house,” there are authorities which uphold the view that such evidence is competent. Whart. Crim. Law, sec. 3395 a ; U. S. v. Gray, 3 Cranch C. C. R. 675 ; State v. McDowell, Dudley (S. C.) 346. In Loehner v. Insurance Company, 17 Mo. 247, the' point is, perhaps, decided that such evidence is inadmissible, though the case of Caldwell v. State, 17 Conn. 467, cited therein, does not support that position. But the case of Commonwealth v. Stewart, 1 S. & R. 341, also ■cited in Loehner's case, supra, declares such evidence ■of substantially the same purport as mere hearsay. The judgment in Loehner's- case was afterwards affirmed in 19 Mo. 628, but the point in hand was not again touched upon, and-probably may be considered as adjudged when the cause was first before this court. Loehner's case is the only civil one where the point has been passed' upon: Perhaps there are considerations in criminal-prosecutions which would render evidence of reputation admissible, which would not apply in civil cases. Even in criminal prosecutions, proof that a house had a certain reputation, though a prominent item of circumstantial evidence, is only valuable as inferentially conducing to establish, the fact of guilt, and is not sufficient in and of- itself to do this. Whar. Crim. Law, supra, and ■cases cited. But, whatever may be thought on the point, if it has not already been decided in this state, it ■seems immaterial in this instance, because the reason of the offer to prove the reputation of the house was stated tobe that of “affecting its value but, as one of the ■defendant's own witnesses had testified that the house was worth nine hundred and fifty dollars, and the verdict returned was only eight hundred and fifty-one dollars, it is difficult, to see how, in any event, defendant has been prejudiced by the ruling made by the trial ■court. In addition to that, there was nothing to show that McMillan knew the character of the house, or defendant’s rule on that subject, and the policy is silent dn the point.

; •’ IV*. The fact that the building was burned is charged in the petition as having occurred November 28, 1879, and the answer first “denies the destruction of the property as alleged/” this admits the destruction of the house by fire, if the ordinary rules of pleading applicable to negatives pregnant are to prevail. It is tantamount to saying ‘ ‘ the house was destroyed by fire, but not on the day, or in the way yon say it was.” Schaetzell v. Ins. Co., 22 Wis. 413, and cases cited; Soeding v. Bartlett, 35 Mo. 90, and cases infra. And the answer then states that “defendant avers that before said building was burned, as alleged,” and by further stating £ £that at, and immediately before the time when said building was burned, mechanics were at work,” etc., thereby makes admission of the destruction of the building as charged in the petition. Hyeronimus v. Allison, 52 Mo. 103; Garth Caldwell, 72 Mo. 622.

Y. And the like remark.applies as to the assignment of the policy, for the petition charges that the policy was assigned on the fifteenth day of October, 1879, by McMillan to plaintiff, and that “ said assignment was approved in writing by the regular agent of the defendant at Spring-field, Missouri,” and the answer states: “ Defendant denies that it ever consented to said pretended assignment of said policy, and that the acts of its agents at Springfield, in consenting thereto, was made without any authority conferred on them by this defendant,” etc. This is clearly an admission by defendant, that Lord & Howell were its regular agents, and did consent in writing, for so the consent had to be, and was manifested, and that their signatures evidencing such consent were genuine. The only denial is their authority in the particular instance. But the policy allowed its “regular agents” to make approval of an assignment of th.e policy. And the powers of insurance agents are presumed to be co-extensive with the business entrusted to their care, and are not to be narrowed by restrictions and limitations not communicated to the party who claims the acquisition of rights through the acts of the agent. Wilkinson's case, 18 Wall. 222, And in this connection it must not be forgotten that the ordinary presumptions arise as to the orderly course of business between the agents and their company. Here the assignment was approved by the “regular agents'’’ October 15, 1879; the building was not consumed by fire till November 28, next thereafter. It is but in accordance with the presumption of the usual and orderly course of business, to presume that the fact of the assignment and approval were communicated by the agents; to their company, and no disapproval by the company of the act appearing, it will be presumed that the company approved the act of their agents. Long v. Joplin Mining Co., 68 Mo. 422, and oases cited.

VI. As to the evidence of an incumbrance on the property insured, the evidence tended to show it, but the testimony of plaintiff tended to show that Lord, who took the insurance, and consented to the assignment of the policy to plaintiff, was fully apprised of the existence of the incumbrance, which was for four hundred dollars, for which property in Lebanon was also bound. The company, in such circumstances, is clearly estopped; for the insurer is estopped from showing a breach of warranty when the agent who effects the insurance is fully apprised of the facts, and knowing them all, still insures the property and receives the premium therefor. Combs, v. Ins. Co., 43 Mo. 149; Franklin v. Ins. Co., 42 Mo. 456; Hayward v. Ins. Co., 52 Mo. 181; Pelkington v. Ins. Co., 55 Mo. 172.

VII. The proof of loss was properly admitted in evidence. It, as well as the builder’s estimate attached thereto, was filed in the cause by the defendant, with its depositions, and came from its custody. They had been forwarded to defendant, been returned to plaintiff, and by him re-forwarded to defendant. The objection made by the defendant to the introduction of the proof of loss in evidence, that it was not signed by the plaintiff, is wholly untenable. His name was signed to the affidavit at his instance, and in his presence, by another, and was adopted by plaintiff as his signature, who was thereupon sworn as to the matter set forth in the affidavit, and this was sufficient. One’s name may be signed even to a deed, in his presence, and at his instance, and the signature will be valid, and certainly so in a case like the present. Of course such proof of loss was only evidence of the fact that it was furnished, and not of the loss itself. Baile v. Ins. Co., 73 Mo. 371.

VIII. And the builder’s estimate was properly admitted in evidence, also, and this notwithstanding clause thirteen' of the policy requires that the “plans and specifications shall be sworn to by the party required to make proofs.” In Ayres v. Ins. Co., 17 Iowa, 176, one of the conditions of the policy required “all persons insured by the company, to deliver a particular account of loss or damage, signed by their .own hands,” etc., and proof was made by one Allen, an improper person, but as the company made no objections as to the proofs, because not made by the plaintiff in person, placing their refusal to pay on other specific grounds, it was ruled that the company could not, at the trial, raise the objection for the first time, that the proofs, were not made in the precise manner pointed out by the policy. A similar ruling was madó in this court, where the certificate was sworn, to by the agent, and not by the insured. Sims v. Ins. Co., 47 Mo. 54. No objection on the score mentioned was made by the defendant in reference to the proofs of loss or accompanying papers, and on the day of trial was too late a period to raise such an objection.

IX. If McMillan, after the sale and conveyance of the property to plaintiff, of his head, and without plaintiff’s knowledge, caused repairs to be made on the house, this unauthorized act could not prejudice plaintiff’s rights. Pollard v. Somerset Ins. Co., 43 Me. 221.

X. Instructions one and twenty should not have been given on behalf of plaintiff. The evidence referred to in those instructions did not make out a prima facie case that the house was worth the amount for which it was insured. If the policy had been a “valued” policy such an-instruction as twenty might be proper, but cerr tainly not in the case at bar. Inasmuch, however, as the lowest estimate placed on the house, and by a witness for the defendant, was nine hundred and fifty doldollars, those instructions could not have resulted prejudicially to defendant.

XI. A remark of the same sort is applicable to instructions six and seven, given at plaintiff’s instance. Though somewhat inaccurately drawn, they were not entirely unsupported by the evidence. The fact that defendant’s secretary, in his letter to plaintiff, insisted on certain conditions not mentioned in the policy, was tantamount to an evasive refusal to pay, and a waiver of formal proofs of loss. It is unnecessary to notice the other instructions further than to say that the principles contained in some of them have already been noticed and approved, and as to the others, whether for plaintiff or defendant, or on the court’s own motion,,they presented, as a whole, no substantial error; and were in accord with former decisions of this court.

XII. The application for a new trial on the ground of newly discovered evidence, does not meet therequireinents of the uniform line of decisions in this state. State v. Ray, 53 Mo. 345; Cook v. Ry., 56 Mo. 380.

For the reasons aforesaid, judgment affirmed.

All concur.