88 Mo. 325 | Mo. | 1885
This suit was instituted upon an open policy of insurance dated fourteenth of March, 1881, 'issued by defendant to recover for a loss of wheat, sheep
The answer of defendant contained a general denial of all the allegations of the petition, except as to their being a corporation, and also sets up in substance' that the shipment in question was not indorsed on the policy or on a book attached thereto, neither was there any certificate properly signed by any officer of defendant issued by the agent of defendant. It also states that plaintiff never applied to defendant for insurance on said shipment, and that defendant never accepted said
It is clear under the terms of the policy, that before any property shipped by plaintiff became insured, that such shipment of the property was either to be endorsed by an agent of the defendant on the policy or on a book attached thereto, or for which certificates properly signed by an officer of the company and issued by the authorized agent of the company. And it is equally deas that the shipment made on the twenty-first of May, 1881, on board the steamb'pat “Durfee” was not endorsed either on the policy or on a book attached thereto, nor was any certificate issued as provided in the policy. But notwithstanding this it is claimed by plaintiff that after the delivery of said policy it was so modified by the agreement of plaintiff and defendant through their agents at Lexington, that when plaintiff made a shipment of property and gave notice thereof in a form furnished him by defendant, within a,reasonable time, either by depositing said notice in an envelope directed to E. Winsor & Son, Lexington, Missouri, either in the post office at Wellington, or by delivering it in person to said agents, or by depositing the same in the post office at Lexington, that the property-shipped should be insured from the time such notice was deposited either in the post office at Lexington or Wellington, or delivered in person to such agents. It is claimed on the other hand that the .terms of the policy
If it had been intended by the parties that the .terms of the contract should not be modified or changed, unless the agreement modifying it was endorsed on the ■policy, the intention could have been expressed by making the said clause read “shall not be construed as a waiver,” modification or change of its terms, etc. If the policy in question had so expressed the intention of the parties, then the class of cases to which we have 'been cited by appellant’s counsel, of which the case of Hale v. M. M. F. Ins. Co., 6 Gray, 169, is one, would -apply, where it is held that when by the terms of a' policy subsequent insurance could only be allowed by the written consent of president, verbal consent could not be shown. That the contract between plaintiff and defendant embodied in the open policy could, be modified and changed by a subsequent parol agreement is established by the following authorities: 1 Greenl. Evid., secs. 303-4; Henning v. Ins. Co., 47 Mo. 425; Bunce, Adm'r, v. Beck, 43 Mo. 266 ; Kennebec Co. v. Augusta
The evidence of plaintiff himself and that, of E. Winsor & Son, the agent of defendant at Lexington, tended to show that subsequent to the delivery of the policy, in consequence of the fact that Wellington was distant • about eight miles from Lexington, and the further fact that the arrival and departure of steamboats at and from the landing at Wellington was uncertain and unfrequent, in order to make said policy .mutually beneficial, it ivas agreed between them that when plaintiff made a shipment, instead of requiring the same to be endorsed on the policy, or on a book attached thereto, or the issuance of a certificate signed by an officer of the company, that plaintiff should notify E. Winsor & Son, the agents of defendant, thereof by enclosing a notice or application, the form of which was furnished by said agents to him, in an envelope directed to them at Lexington, envelopes for that purpose having also been furnished him by said agents, and either delivering the same in person to said agents or depositing it either in the post office at Wellington or Lexington ; that the rate of premium agreed upon (it not being fixed in the policy) should be three-fourths of one per cent, upon all shipments made, until notice should be given of a change and that such premium should be paid at the end of each month. That the shipment in question- was made on the twenty-first of May, 1881, the steamboat “Durfee” with its cargo leaving Wellington early in the morning of that day; that plaintiff signed the form furnished him, as follows
“To the Mechanics’ and Traders’ Insurance Co., of New York.
Received at office.
1 Wellington, May 21, 1881. Insurance is wanted under open policy, No.
Lewis H. Day, applicant.'
Bisk No. -
Name, of vesbel or route. E. H. Durfee.
' From ■Wellington
To St. Louis
Description of property
Am’t.
1021 sacks of wheat
$3,000
58 head of sheep
300
5 sacks of wool
225
Bate premium,
“[Signed.]
Lewis Tl. Day.
That the notice or application was enclosed in one of envelopes also furnished by said agents, with a printed direction thereon, as follows :
“Messrs. E. Winsor & Son,
“Agents Mechanics’ and Traders’ Fire Ins. Co.,
. ‘ ‘ Lexington, Mo. ’ ’
That on the evening of that day he went to the post office for the purpose of depositing said notice therein, to be mailed according to the direction thereon, and learned from the postmistress that the mail for Lexington had gone, and the mail would not again leave until the following Monday evening; that upon learning these facts, he placed the said letter and notice in the hands of one Charles Bowing to be deposited the next morning in the post office at Lexington; that Bowing deposited said letter and notice in the post office at Lexington on the evening of the next day, it being Sunday and the twenty-second day of May; that on Monday, the twenty-third day of May, the steamboat sunk, whereby all but a few dollars worth of the property was totally lost-, that the notice of shipment was not in fact received by said Winsor & Son, and that they knew nothing of the
' On the above state of facts which the evidence tended to prove, defendant requested the court to instruct the jury that the plaintiff could not recover. The court refused to grant the request and gave instructions on behalf of the plaintiff in substance and to the effect, that if for the purpose of making the open policy in question useful and profitable to both parties, it was, subsequently to the making thereof, by the mutual assent, practice and acquiescence of both parties, that the terms of said policy should be modified and changed to the extent of permitting and allowing plaintiff to make shipments on seaworthy steamboats navigating the Missouri river, whenever he should be ready tó make such shipments while such steamboats were stopping' temporarily at the landing in Wellington, and should: give notice of such shipments, through Winsor & Son, on and bjr a form furnished him by defendant for that.
The instructions given by the court come within the principle stated on page 317, 1 Parsons on Marine Insurance, where it is said: “An open policy is so called because an insurance is provided on goods to be after-wards specified and declared. Running or open policies are now common. Merchants engaged in a certain trade wish to keep all their merchandise constantly insured They effect this, not by a policy on every adventure, buj. by one policy sufficiently general in its terms to cover all the expected shipments ; and then as the insured has notice of each he indorses it on the open policy. Sometimes the policy requires that each indorsement shall be
Under the terms of the original policy in this case, before an insurance of property shipped could be effected under it, an indorsement thereof by an authorized agent of defendant was required to be made either bn the policy or a book attached thereto, or the issuance of a certificate by an agent and signed by an officer of the company. If, after the delivery of this policy, - it was so modified and changed in these respects by the mutual consent and agreement of the parties, as only to make it necessary to. effect an insurance on plaintiff’s goods or property when shipped, for him to give notice to defendant in the form of an application of such shipment, naming the vessel on which such shipment was made and its destination, when it was made, stating what property was shipped and its value, either by depositing the same in the post office at Wellington or Lexington, directed to Winsor & Son, defendant’s agents at Lexington, and such application or notice was within a reasonable time so deposited, then the property so shipped was insured under said policy so modified from
The authority of Winsor & Son as the agents of 'defendant at Lexington to make the modification in the-contract referred to in the evidence may be inferred from the course of dealing with plaintiff and recognition of these acts by the company. Combs v. Ins. Co., 43 Mo. 148 ; Ang. & Ames on Corp., sec. 284; Kennebec Co. v. Augusta Ins. Co., 6 Gray, 204; Northrup v. Ins. Co., 47 Mo. 435. The theory on which the court tried the case, as evidenced by its instructions, we think was the correct one, and- perceiving no error in the record,' materially affecting the merits of the action, the judg-ment is affirmed.