58 Mo. App. 611 | Mo. Ct. App. | 1894
The policy of insurance sued on in this case, was issued December 20, 1890, and contained, among other provisions, the following: “If there shall be any other insurance, whether valid or otherwise, on the property insured, this policy shall be void.” One of the defenses was that there Was other insurance outstanding at the time the policy was issued.-
The facts shown at the trial were that plaintiffs applied to an insurance agent named McGibbons, of Kansas City, for a policy of insurance on the property covered by the present policy, and that McGibbons, being unable to issue them a policy in any company which he represented, applied to Johnson & Griffith, a firm of insurance agents in Kansas City, who agreed to issue to them a policy in the Oakland Home Insurance Company of California. After a proper survey of the property was had and signed by plaintiffs, Johnson & Griffith wrote a policy of insurance in the Oakland Home Company for one year, for the same amount and on the same property covered by the present policy, and delivered it to McGibbons on December 2, 1890. Within two or three days thereafter McGibbons delivered the policy over to plaintiffs, who kept it until after the. fire occurred on December 29, 1890, a space of between three and four weeks. After the policy had been in plaintiffs’ possession about ten days, Johnson
Between December 15, the day Johnson & Griffith received the telegram from the Oakland Company to cancel the policy, and the date of the fire, December 29, Johnson & Griffith frequently telephoned to McG-ibbons for the policy, and McGibbons on several occasions after December 20, when he met plaintiffs in Kansas City, notified them that he had another policy, and for them to bring in the Oakland policy, as the agents wanted to send it to the company. Plaintiffs neglected to return the policy. Finally, on the day of the fire,December 29, McG-ibbons wrote to the plaintiffs the following letter: ‘ ‘Please return the mill policy so that -
I can send you a new one. The one you have is canceled. I have another ready for you as soon as you return that one. ” This letter was received by plaintiffs on the next day, and on the latter day McGibbons telegraphed them to “come down at once and bring your, policy with you.” The next day, December 31, plaintiffs took the policy to Kansas City and delivered it to McGibbons, and received from him the policy in this suit. McGibbons, on the same day, delivered the Oakland policy to Johnson & Griffith, who wrote “canceled” across the face thereof,
The question is, was there a cancellation of the Oakland policy before the issuance of the defendant’s policy? If there was not, then it constituted other insurance and avoids defendant’s policy. To cancel a policy there must be a distinct notice given to the holder or an agent authorized to receive it. Notice to an agent who procured the policy for the holder will not answer. Rothschild v. Ins. Co., 74 Mo. 41. The notice must not be equivocal; it must not be of an intention to cancel, but must be of an actual cancellation.
In,May on Insurance [3 Ed.], at section 67, among other things, the author says: “* * * The right of cancellation on notice, reserved by the terms of the policy to either party, should be exercised with care, that the notice be explicit and the conditions strictly complied with. A mere notice of a desire or intention to cancel is not such an exercise of the right of cancellation as will relieve a company from the obligations of the policy. * * * And the exercise of the right will also be confined strictly within the terms under which it is allowable by the provision of the contract. * .* *
In Wood on Insurance [2 Ed.], at section 113, among other things, it is said: “* * * In order to cancel a policy so as to extinguish the liability of the insurer, not only must notice be given that the policy is canceled, but a ratable proportion of the premium must be refunded or tendered to the assured, and until this is done, the policy remains on foot.”
In view of the foregoing rule of law applicable to the cancellation of an insurance policy, was the Oakland- policy canceled on the twentieth of December, the day the present' policy was issued? For, if it had not been canceled at the time the present policy was issued, the present policy is avoided, although it may have been canceled afterwards. It is not pretended that the agents for the Oakland had any communication whatever with plaintiffs. All that took place on the subject of cancellation was that which occurred between the Oakland agents and McGibbons, and between McGibbons and plaintiffs. All that occurred on this subject between McGibbons and plaintiffs before the present policy was issued was the letter of December 15. McGibbons on that day, or the day before, was informed by Johnson & Griffith that the Oakland Company (quoting his language] “refused to carry it,” the property insured. “Johnson & Griffith telephoned me about the fifteenth of December that they wanted, to cancel the Oakland Home policy, and I wrote Gardner the same day. The agents of the Oakland Home Company telephoned me that they did not want to carry the risk and asked that the policy be taken up.” The last sentence of this has reference probably, from what followed, to communications after the defendant’s policy was issued. Witness Johnson, of the firm of Johnson & Griffith, testified that his firm received a .telegram
“Kansas City, December 15, 1830.
F. Gardner & Son, Parkville, Mo.
Gentlemen: The Oakland Home Insurance Company will cancel the policy I sent you on “Mill.” I will send you another policy in a first-class company as soon as the survey you filled out is returned to me by the Oakland Home' Insurance Company, which will be in a few days. Currier Commission Company accepted your order for $25 and probably more.”
This letter is the first intimation that plaintiffs received from any source that there was dissatisfaction with their Oakland policy on the part of the company. This letter is all that plaintiff heard of the matter until after the issuance of the present policy on the twentieth of December. McGibbons and plaintiff both state in their testimony, that the conversations concerning the cancellation were after the twentieth. This important fact is the more unmistakably fixed by McGibbons, for, in the conversation, he informed plaintiffs that he had obtained a policy in another company, referring to defendant. And one of plaintiffs said in his testimony that McGibbons said, in their conversation, for him “to bring that policy down, that it was canceled, and that he had put me in another good company. I think I asked him what company he had put me in and he said the Standard, of Kansas City, and told me the stockholders that was in it, most of them. Well, says I, that is good enough; I am satisfied; and he told me to bring the policy down,”.
From the foregoing there' can be no doubt whatever, in my judgment, that the Oakland policy was uncanceled, at least up to the twenty-fourth or twenty-fifth of December. That is the first time plaintiffs learned that it was canceled. It is the first action they took upon information that it was canceled. It is clear to me that McGribbons never intended that his letter of the fifteenth should be taken or interpreted as a cancellation of the policy. The most he had in mind ' was to notify plaintiffs that the policy would be canceled when another in a different company had been written. He says that he had sent for the survey for that purpose. And his testimony as well as that of Johnson.was that it was customary for time to be given on cancellation to get a policy in some other company; the object being not to allow insurance, in such case, to lapse.
The foregoing view of the case renders unnecessarseveral interesting questions discussed by counsel.
We are not unmindful that the jury trying this cause has passed upon the question of cancellation as a fact submitted to them. But the facts as to the action taken on the matter of cancellation are not controverted. There is no room for dispute as to the facts. We must apply to them the legal result flowing from them. The Oakland policy, in plaintiffs’ possession until after the fire, was a good outstanding policy unless canceled when defendant’s policy was issued on the twentieth of December. There is no pretense that the agents for the Oakland had any communication with the plaintiffs whatever. They communicated
One of the plaintiffs was himself a witness on this subject; he testified while being examined by his counsel: “Q. When did you next hear anything about that insurance? A. A short time afterwards I got a letter from Mr. McGibbons notifying me — Q. (Showing witness letter.) Just look at that letter Mr. Gardner, and see if that is the first letter you received? A. Well, we were shipping a good deal of wheat down here; pretty near a car load a day, and we were cousid
Under the legal proposition which we have stated as to cancellation, the letter of the fifteenth was not a cancellation. Whatever else was communicated to plaintiffs was several days after the present policy was issued. There can be but one result following these facts and that is an avoidance of defendant’s policy.
The foregoing will, perhaps, not be controverted; but it is met by the contention (which, if well founded, would avoid it) that McGribbons was the agent of plaintiffs, not only to procure the insurance, but to receive notice of the cancellation of the Oakland insurance policy. Now the law is that effective notice of cancellation may be given to the agent of the insured, provided he is the agent for that purpose. If he has in his charge the insured’s insurance business — placing and controlling all his insurance, canceling, replacing and substituting policies at his pleasure — as was the fact in Huggins v. People’s Ins. Co., 41 Mo. App. 537-539, and in McCartney v. Ins. Co., 33 Mo. App. 652, then he is
The cases above cited are strikingly like this case in essential features. In the Rothschild case, Blossom was the insurance broker who undertook, at the ^instance of Rothschild, to obtain insurance for him and had procured to be issued for him several' policies in different companies aggregating $15,000, which were conditioned against any insurance beyond that amount. After Blossom obtained these policies and delivered them to Rothschild one of the companies directed its agent to cancel its policy. The agent notified Blossom that the policy was canceled. Whereupon Blossom proceeded to replace it by obtaining another policy. If there had been a valid cancellation the last policy
The only difference between those cases and the one now under consideration is, that in this case Me-Gibbons upon being informed that the Oakland company declined the risk, wrote to plaintiffs the letter of December 15, in which he informed them that the Oakland “will cancel” its policy and that he would procure them another policy in some other company, to which plaintiffs made no answer. It is upon this unanswered letter that authority to MeGibbons to accept notice of cancellation must rest. It is settled beyond controversy that when MeGibbons procured the policy in the Oakland and delivered it to plaintiffs his agency ceased. This is agreed to and asserted by .perhaps all the authorities on the subject. Any further agency must, of course, emanate from plaintiffs. That plaintiffs again conferred upon him an agency can not be shown. Eor if the unanswered letter is asserted to be authority, then it must follow that any one can make himself the agent of another to transact that other’s business by simply informing his would be principal that he purposes doing so.
But the suggestion is made that these plaintiffs
This case was not certified to the reporter till November 21, 1891.]