94 Mo. 353 | Mo. | 1887
Action on a policy of insurance issued by the defendant company to the plaintiffs for the sum of twenty-five hundred dollars, on a stock of goods, in Deadwood, D. T. The policy took effect from the sixth of July, 1880. The petition avers that the defendant is an insurance company and corporation acting under and by virtue of the laws of the state of Ohio, having a general agent in the state of Missouri, resident at St. Louis, then declares on the policy ; alleges a loss by fire on the eighteenth of January, 1881, proofs of loss furnished, February 23 next thereafter, and prays damages, etc.
The answer of the company avers: “That on the sixth of July, 1880, at Deadwood, plaintiffs, by their agent, L. O. Miller, applied to defendant for insurance, as in the petition mentioned, and defendant accepted the application and delivered the policy sued on, which is made a part of the answer, and says, by the express terms of the policy, it was agreed that if the assured should then have or thereafter make any other insurance on the property, without notice to and consent of the defendant, in writing, indorsed thereon, the policy should be null and void; and if any policy had been
The reply of the plaintiffs suitably put in issue the material allegations of the answer, and the cause being tried resulted in a verdict for plaintiffs in the sum of $2,756.16. The present cause, consolidated with that of the same plaintiffs against the Aurora Eire Insurance Company, was tried before Hon. Amos M. Thayer, and resulted also in a verdict for the plaintiffs in the-sum of - $1,653.70. Both of these causes went on appeal to the St. Louis court of appeals, where the judgments of the circuit court were reversed, and from the judgment in the former case, the plaintiffs have appealed to this court.
Among the general provisions of the policy in question was this one: “It is further agreed that if this policy has been procured by any person or persons other than the duly appointed and authorized agent of this company, such person or persons shall be deemed the agent of the assured, and not of this company; this company shall not be liable by virtue of this policy or-
Hamilton, one of the plaintiffs, testified in substance that: He was a resident of Deadwood, Dakota; a merchant. He testified to the policy of fifteen hundred dollars in the Aurora, which he says he obtained from L. C. Miller, insurance agent at Deadwood ; that Miller solicited the plaintiffs for insurance ; plaintiffs told him to place four thousand dollars in some good companies, and he, Miller, brought the plaintiffs the policies of twenty-five hundred dollars in the Home, and fifteen hundred in the Aurora; the subject-matter of insurance was their stock of merchandise in their store at Deadwood ; they took other insurance subsequent to the policy sued on ; procured the subsequent insurance of L. C. Miller, agent of the companies; it was at his solicitation, and not plaintiffs’; it was at different dates ; one on the twenty-first of July, probably, for five hundred dollars; one in October, and one in December. “The one that went on in October was to take the place of the thousand that was already on in this defendant; it had been in the Liverpool, London and Gflobe, and we put it in the Springfield. There was insurance of a thousand dollars on the stock when we took the insurance in the
The Miller, who is referred to in the answer of the defendant, deposed in behalf of plaintiffs, as follows: “Residence, Deadwood; age, 48; occupation, insurance agent; had been agent for five years; got Hamilton & Rockfellow, the plaintiffs, their insurance from Mr. J. B. Bennett, at St. Louis, who was the general agent for numerous companies, this among the others. Solicited insurance from Hamilton & Rockfellow, and my order to Mr. Bennett was in one order for four thousand dollars, written on a blank, I think, without any name of particular company ; if it was any, it was the Home ; if it was on the printed blank that he furnished, it was the Home of Ohio; sent the order off, and instead of being one policy they sent two — one of the Home for twenty-five hundred dollars, and one in the Aurora, of Cincinnati, for fifteen hundred dollars. At the time of issuing this insurance to plaintiffs of the defendant company, and in taking the application, I had notice of other insurance, and put on the blank to that effect; that there was other' insurance in the Liverpool, and London and Globe — just how much, now, I couídrú t say, but the application will show: I had taken the policy of the Liverpool, and London and Grlobe, and it
Further on, the deposition of this witness discloses that he had authority from Bennett to make out applications generally upon printed blanks furnished him by Bennett, and that these' applications would be directed to the Home; that. witness would write more than the
This witness also produced some letters and circulars sent to him by Bennett; they are as follows :
“J. B. Bennett, General Agent,
“No. 14 Insurance Building,
“ Sixth and Locust streets,
“St. Louis, Missouri, June 11,1880.
“Mr. L. C. Miller, Esq., Deadwood, D. T.:
“Dear Sir: We are in receipt of your application for the agency of the Home, of Ohio. Our supplies are being prepared, and as soon as finished, we will be ready to appoint our agents. Until then we will issue policies here, allowing you the usual commission of fifteen per •cent. We have facilities for placing lines in first-class companies, and are prepared to accommodate you to any extent, and will be pleased at all times to hear from you.
“Yours truly,
“ J. B. Bennett, G. Agent.”
A printed circular, on which was printed with a
“Dear Sir: We transact business upon sound and enduring principles, pay fair losses promptly and pleasantly, appreciate and second the efforts of our agents heartily, and ask proper concert on their part, so as to promote the best interest of all concerned in the agency now entrusted to yoior care ; therefore, compliance with the following instructions and rules is confidently expected.” Then follows requirements as to monthly reports, risks, rates, etc., and it is signed,
“Respectfully,
“ J. B. Bennett,
í ‘ General Agent.”
“ J. B. Bennett, General Agent,
“No. 11, N. W. Corner of Sixth and Locust Sts.
“St. Louis, Missouri, June, 11, 1880.
“ L. C. Miller, Esq., Dakota Territory :
“ Should you need any surplus lines of insurance placed, or have any desirable business you want insured in solid companies, at fair rates, please send me application with the written form of policy, and I will promptly send you policies for same, allowing you customary commissions. An extensive experience of over thirty years enables me to so appreciate the growing requirements of this business to agents and others concerned, as to frequently render just the assistance needed in promoting desirable insurance transaction's in a satisfactory manner. If you avail yourself freely of this offer, you can make it a valuable auxiliary to your agency by securing better lines and controlling more custom with less competition,
“ Yours truly,
“J. B. Bennett.”
A letter from J. B. Bennett, October 2, 1880, to L. C. Miller, Deadwood, D. T., in which lie says: “In reply to your favor of the 27th inst., I can fill your orders for the Watertown Insurance Company to your satisfaction. There is no occasion for different arrangements. You can make the risk binding from your mailing orders, or from any subsequent date desired. I will allow you the policy fees when you collect the same; also fifteen per cent, commission, and can also accept any outside business you recommend — in fact, do it better and more satisfactory every day than to have your D. T. reports come under the criticism of some clerk at main office, as much of the business of fire insurance is done east of the Missouri.”
The witness also produced another letter, which is worthy of preservation ; it is dated: “St. Louis, Missouri, October 26, 1880. L. C. Miller, Deadwood, D. T.”
It proposes to give him (Miller) a few items that may benefit him. It commences with the proposition that: All desire to be law-abiding citizens, but that statutes are of different degrees of importance. Some are against passing bank notes of small size; yet the public take all the one-dollar bills offered them; that the state controls all the corporations — that is the legal theory — and a corporation cannot operate beyond its jurisdiction unless permitted to do so; but the necessity of trade modifies this; under the individual rights given to every citizen of the United States, a citizen has the individual constitutional right to buy and sell with great freedom; he can buy his insurance just where he wants to, and he can do this by his agent or attorney. So merchants in large cities are compelled to cross state lines for insurance risks for large amounts,
“J. B. Bennett, General Agent.”
The witness also testified that before his appointment as agent, he received a circular letter from Bennett, marked “Exhibit F,” which is as follows:—
“ General Agency Department,
“Home Insurance Company, of Columbus, Ohio.
“Incorporated 1864. Losses paid $2,888,874.51.
“ J. B. Hall, President. H. M. Henderson, Sec.
“R. S. Brown, V. P. C. G. Si-ieppard, A. S.
“ J. B. Bennett, F. 0. Sessions,
“ General Agent. Treasurer.
“The Home Insurance Company of Ohio, with sixteen years’ experience, having paid $2,888,874.51, for
“Yours truly,
“ J. B. Bennett.”
To sustain the issues -on its behalf, the defendant introduced eviderice as follows:
A letter from L. C. Miller to Bennett, dated June 30, 1880, enclosing the application of Hamilton & Rock-fellow, for insurance on the property as before stated, for four thousand dollars, at five per cent, premium, two hundred dollars, dated June 30, 1880. Signed, “H. & R., applicants, per Miller.”
“Questions on the opposite side must be fully answered by applicant.
“L. C. Miller.
“ Commercial Insurance Company, California.
“Applicants must answer the following questions, etc.: Question II: What other insurance in any company and in what company.” There are twenty-seven of these questions, some answered and some not. There is no signature by applicants. At the foot it is signed, “L. C. Miller.”
The deposition of J. B. Bennett, the general agent of defendant, was also read on behalf of the defendant, in which he states that he was the general agent of defendant at the time indicated; was not general agent of the Aurora Insurance Company, spealcing in technical insurance parlance/ not agent for the Merchants’ and Traders’, nor the Watertown, but writing policies for .the Watertown to some extent, for Dakota Territory,
It is shown, however, in Miller’s deposition that he was present at the fire, telegraphed Bennett of the loss, also wrote him a full account of the fire, and gave particulars of the loss, and in response to his letter, received one in a few days from Bennett, signed as general agent, acknowledging receipt of telegram and letter, and concludes by saying: “Please give us the facts in the case early. We note that II/ & R. did not stand well finan
On cross-examination, Bennett denied that the blank attached to the deposition of Miller, purporting to be an application to Bennett, as general agent, at St. Louis, was ever received from Miller ; also denied that he ever sent such a blank in the case, then admitted that he did send him such a blank. Bennett then admitted that all the exhibits, letters, and circulars Miller had offered in evidence were genuine ; stated that he was the general agent of La Caisse Generate Insurance Company; that the form produced is that of the latter company .and not of the Home, and that that name was merely .stamped on in the office of witness as an advertisement. He also admitted that “Exhibit F,” already set forth, was a special circular of the Home Insurance Company.
The evidence in this cause has been set out at large, in the foregoing statement, which accompanies this opinion, because the sole ground upon which the judgment of the circuit court was reversed by the St. Louis court of appeals was, that there was no evidence to show that Milter was the agent of the Home Insurance Company. It seems to me that there is ample evidence of that fact, all through this record — extending from the inception •of the agency down till the occurrence of the loss. And even when the loss occurred, Milter acts as an agent should, advises his principal of the loss by telegraph; writes him full particulars by mail, and receives the usual reply in such cases from Bennett. If, as the latter swears, “ all connection with the matter closed when the policy was delivered by Milter,” it seems strange beyond belief that a mere stranger should so interest himself in the loss as Milter did. The court of appeals seems to have overlooked the significant manner in which the printed circular of June 11, 1880, was addressed toL. C. Milter, Esq.,
The trial court was, therefore, entirely correct in giving the following instruction:
“1. If the jurors believe that J. B. Bennett, the general agent of the Home Insurance Company, mailed to one L. C. Miller, at Deadwood, Dakota Territory, the printed circular marked “ Exhibit F,” attached to the deposition of said Miller, which has been read in evidence ; that thereafter said Miller applied for the agency of the Home Insurance Company to said Bennett, and thereupon said Bennett wrote and mailed to said Miller the letter of June 11, 1880, which has also been read in evidence, and at the same time enclosed the printed circular of instructions, dated June 11, 1880, addressed to L. C. Miller, agent Home Insurance Company, Deadwood, D. T., which has also, been read in evidence. And if you also believe that said Miller thereupon, and for a period of several months thereafter, solicited insurance for, and on behalf of, the Home Insurance
That instruction is a very happy and concise embodiment of the evidence adduced on behalf of the plaintiffs. If evidence tending to prove certain facts to exist, be introduced, it is perfectly competent' for the court to instruct the jury that if they find the existence of such facts, that then the law arising on the facts thus found is as stated in the instruction. Thompson Charging the-Jury, sec. 10 ; Davis v. Davis, 7 Har. & J. 36; Clarke’s Adm’r v. Marriott’s Adm’r, 9 Grill, 331.
Taking the agency of Miller as established, it- results-that if he as such agent had notice of other insurance and took no steps to cancel the policy in suit; then the-fact of such other insurance would constitute no defence to plaintiffs’ action on that policy, and this upon the-familiar principle that notice to the agent is notice to the principal; and what the agent waives, the principal cannot afterwards insist upon. And in cases of insurance, if an agent, when notified of further insurance, gives verbal assent, or makes no objection, his principal cannot afterwards, when sued on the policy, make the-point that other or further insurance was not indorsed upon the policy. In such circumstances, failure of' literal compliance with the stipulation in the policy will not be allowed to work a forfeiture, and the company is-
The principle here announced is very well expressed in the second instruction given at the instance of the plaintiffs, as follows:
“2. If the jurors believe and find that, on July 28, 1880, November 8, 1880, and November 24, 1880, said L. C. Miller, referred to in instruction number one, was acting for the Home Insurance Company, at Deadwood, D. T., in the transaction of its insurance business, and that said L. C. Miller had notice of the insurance and delivery on those days to the plaintiffs of the three insurance policies read in evidence, issued by the Mechanics’ and Traders’ Fire Insurance Company, and by the Springfield Fire and Marine Insurance Company, and by the Watertown Fire Insurance Company, and that said L. C. Miller, made no objection to the issuance of said policies to plaintiffs, and took no steps to cancel the policy of the Home Insurance Company previously issued and now in suit, then the court instructs you that the issuance to and the receipt by plaintiffs of said three last-mentioned policies issued subsequent to July 6, 1880, is no defence to this action, and the jury will so' find.”
It is unnecessary -to notice the instructions given on behalf of the defendant further than to say that they fairly present, with the modifications made by the trial court, the theory of the defence. After careful perusal of the-whole evidence in this cause, I. am persuaded that the effort of the defendant company was so to arrange matters as to derive all the benefits arising from
' The judgment of the court of appeals is reversed and the cause remanded to that court, and the judgment of the circuit court affirmed, with directions to the court of appeals to enter á judgment of affirmance.