Deitz v. Mound City Mutual Fire & Life Insurance

38 Mo. 85 | Mo. | 1866

Holmes, Judge,

delivered the opinion of the court. •

This was a suit brought upon a policy of insurance. The defence was, first, that a subsequent additional insurance in another company had not been notified to the defendant, and neither endorsed on the policy or acknowledged in writing by the company, as required by the conditions of the policy; and second, that there had been a renewal of a policy on the same property in another office after the expiration thereof, in violation of the express terms of the plaintiff’s written application, and’ in breach of the warranty contained and implied in the policy. The charter, application, by-laws, and conditions of insurance, annexed to the policy, were therein declared to form a part of the policy. The conditions required that, in case any other insurance should not be notified to the company, and mentioned in or endorsed upon the policy, then the' insurance should be void ; and further, that if the assured should thereafter make any other insurance on the same property, and should not forthwith give notice thereof to the company, and have the same endorsed on the policy, or otherwise acknowledged by them in writing, the policy should cease to have effect. The charter provided that the board of directors should determine the rate pf insurance, the sum to be insured on any building not to exceed two-thirds of its value, nor one-half of the value of personal property ; and that insurance should be made, in all cases, upon the representations of the assured contained in his application therefor. This insurance was upon a stock of furniture, matresses and coffins, contained in a building occupied as a furniture store, in the city of Weston, in this State. The plaintiff’s application, made through the company’s agent at Weston, was for a'n insurance of ®4,000 on this property. In answer to the question what other insurance the applicant had on the property, it was therein stated that he had an insurance of 18,000 in the St. Louis Insurance Company, on a policy which would expire on the 81st of January, 1858, and that it would not be renewed, and that there was a like amount of insurance in another company, which would be renewed. The application was accepted for the sum of $2,000 only, and the policy sued on here was issued, and accepted by the plaintiff for that amount. When the policy of the St. Louis Insurance Company expired, it was renewed for another year, and some two months after the date of the policy here sued on, the plaintiff effected an additional insurance in the Pacific Insurance Company for the sum of $ 1,000, for one year from date. Neither this renewal nor the additional insurance was ever endorsed on this policy; nor was any acknowledgment in writing of notice thereof, and of the consent of the company thereto, ever actually delivered to the plaintiff, nor communicated to any agent of the plaintiff; nor was any such wñtten acknowledgment produced in evidence. These other insurances were in force when the loss occurred ; and these stipulations were a condition precedent to any right of recovery on the policy—Hutchinson v. West. Ins. Co., 21 Mo. 97.

The plaintiff endeavored to prove such acknowledgment by the agent at Weston. He testified that when the plaintiff applied to him, at Weston, for this insurance, he stated to witness the amount of his insurance in other offices, and showed him his policies, and that this notice of other insurance so given to bina was by him transmitted to the company at St. Louis, and by them acknowledged, and that the plaintiff’s application, in consequence thereof, had been reduced to $2,000. He further stated that the plaintiff, at the time when he made his application for insurance for $4,000, expressed his intention, if his application was granted as applied for, to permit his other policies to expire by limitation, but that as his application was reduced by the company, he renewed or took other insurance from other offices ; and he said further, that the plaintiff, after procuring the additional insurance, called on him, at his. office in Weston, and made known to him the fact, that he did not recollect the amount, but thought the amount of the insurance altogether was about the same-then as when the defendant’s policy was granted ; but he does not say that even this information was notified to the company at all, much •less that their acknowledgment or consent was procured in writing.

It is plain that the first part of this testimony relates to a time anterior to the acceptance of this policy by the plaintiff. Whatever such verbal statements may have been, or whether the transmission of notice or information of them by the agent to the company was acknowledged or not to the agent, they cannot be admitted to have any effect to alter, modify or contradict the express terms of the application and the policy. It matters not that the application was not accepted for the whole amount; the policy that was issued thereon for $2,000 only was accepted by tlie'plaintiff. His rights must be determined by his written contract. It was expressly provided in the application itself, signed by the plaintiff, that the company would not be bound by any statements made to the agent, not contained in the application. This testimony, as tending to vary or contradict the written instruments, was wholly inadmissible, and should have been excluded upon the defendant’s objection. But neither this part of the testimony nor the other statements amounted to anything when admitted. The evidence did not show, nor tend to prove, either an endorsement on the policy or an acknowledgment in writing on the part of the defendant, made and communicated to the plaintiff by the company or by any agent of the company, at any time. The mere fact that the plaintiff, when he had some two months afterwards renewed one policy and obtained another, contrary to the express warranty contained in his policy, called upon the agent at Weston and gave him verbal information thereof, could be of no sort of importance. It could have no effect upon the defendant unless notified to them, and either en-. dorsed on the policy or acknowledged in writing to the assured in such way as to signify the consent of the company thereto. No evidence to this effect was ever offered by the plaintiff.

On the part of the defendant, the secretary of the company testified that no other application had been made by the plaintiff, and he produced what he stated to be all the letters which the company had received from the agent at Weston, among which was one dated after the loss, in which the agent says he “ would like to know upon what ground your refusal to pay Dietz’s claim is based. It is said here that it is because you were not notified of his having other insurance. I cannot credit this, as I have your letter acknowledging siich notice, and offering that as an excuse for cutting down the amount of his policy.” This evidence being introduced by the defendant, may be taken for what it is worth ; but it is plain it cannot refer to any other time or notice than that already spoken of by the agent in his testimony, which must have been anterior to the plaintiff’s acceptance of this policy; otherwise, it could not have been an excuse for cutting down the amount of his application. Moreover, it did not specify what other insurances were referred to, nor does it say there was any notice given of this particular renewal, or of this additional insurance. Nor does it tend to prove any acknowledgment in writing by the defendant to the plaintiff directly, or through the agent, of such renewal or hew insurance. The mere fact that the information was transmitted by the agent to the company, and that the receipt of his letter was acknowledged to their own agent, would not amount to an acknowledgment in writing to the plaintiff here. If it could be proved that this agent was acting as the agent of both parties, that he sent a notice to the company on behalf of the assured, and that the company acknowledged such notice in a letter addressed to him as the agent of the other party, and thereby expressed the consent of the company thereto, though that letter may not have been delivered into the hands of the plaintiff, such letter might be admissible evidence, and it might possibly be a sufficient acknowledgment; but of this we are not called upon to decide now. When such letter is produced or proved, it will be time to pass upon that question.

In this view of the case, it will be unnecessary to examine the instructions in detail. It will be sufficient to say of the instructions given for the plaintiff, that there was no evidence before the jury which could warrant the giving of them. The instruction first refused for the defendant should have been given.

Judgment reversed and the cause remanded.

Judge Wagner concurs; Judge Lovelace not sitting.