Hartford Fire Insurance v. A. F. Davis & Co., 59 Mo. App. 405

Hartford Fire Insurance v. A. F. Davis & Co.

59 Mo. App. 405 | Mo. Ct. App. | 1894

Ellison, J.

Defendants were the agents of plaintiff and as such had insured the furniture of a Mrs. Browne which was situated partly in her dwelling house and partly in a building near by, but not adjoining. The furniture in the latter building was destroyed by ñre and Mrs. Browne recovered by suit the full amount of the policy issued to her. When plaintiff was first notified of the issuance of the policy to Mrs. Browne, it notified defendants as its agents to divide the insurance if the dwelling and other house did not adjoin, but did not specify the amount which should be placed on each. . The defendants responded to this direction from plaintiff by-stating that they had divided the insurance by placing $800, on the furniture *408in the dwelling and $500 on that' in the other building. The policy was afterwards delivered to Mrs. Browne, a fire thereafter occurring, and upon which she recovered a judgment as before stated. Plaintiff thereupon instituted this suit against defendants for the damages resulting from their alleged failure to divide the policy as directed and as they reported they had done. Defendants defended on the ground that' they had divided the insurance in the manner stated by them to plaintiff in response to the direction of plaintiff that they should divide it. The evidence to sustain this defense consisted principally in that defendants made the change by filling out two paper slips with a statement of the change and pasting one on the face of the policy and- the other on the margin of their register. The slip on the register was-in its place at the trial, but the slip said to have been attached to the policy was not, but the policy bore evidence of having had some pasted matter attached to it. The evidence in behalf of the defense further tended to show that the change was made in the manner aforesaid two months or more before the policy was delivered over to Mrs. Browne, though, perhaps, a few days after it was made out. It appearing that it was made out and remained with defendants for a period of time before it was delivered.

We have gone over the evidence as preserved in the abstracts and find that it was sufficient in point of substance to uphold the finding of the court. It is scarcely necessary to repeat here that, we will not undertake to weigh the evidence in order to ascertain in whose favor it may preponderate, that duty having been performed by the trial court. The trial being had without a jury, it is of no particular moment to discuss the instructions, except as they may show the theory upon which the trial court disposed of the case. The effect of the declarations was that, although there *409could be no change or division of the policy without notice to Mrs. Browne, yet, if the policy had been changed or divided by defendants before they delivered it to Mrs. Browne then it was a valid change of the policy and the policy had been made to comply with the directions which plaintiff had given defendants. This was a correct declaration. Conceding that when the policy was originally made out and left in the hands of defendants, Mrs. Browne had a perfected right therein in the form it was then, yet when it was formally delivered to her, some time afterward, she accepted it in its changed condition, and she must be held to have accepted it as changed. She must, in the absence of fraud, be presumed to know its contents and to have determined to be governed thereby. There is, however, a slight difficulty right at this point. It seems that the policy afterward appeared without the slip making the division being attached and the defense does not affirmatively show that it was attached at the time it was delivered to Mrs. Browne. It was not opened by defendants. But the defense does show that is was duly attached and we must presume that it remained so until a period when it was shown not to be, and this was not till long after its delivery to Mrs. Browne.

It seems that Mrs. Browne’s recovery on the policy was for the whole amount of the policy, there being enough loss in the one building burned to cover the amount of the policy. She was enabled to recover the full amount of the policy by reason of its not appearing at the trial to have been divided so as to. put a part of the amount on the other building. Something has been said in regard to this to the effect that defendants should have spoken' at the trial of the fact of the division having been made so that plaintiff here might have protected itself. Defendants here say that the *410fact did not recur to them at the time. That, having-had so much of insurance business, they had forgotten it. But be this as it may, it is conceded that defendants notified this' plaintiff that the change had been made and plaintiff should have had this in memory when sued by Mrs. Browne for the full amount of the policy. We do not consider this of any particular importance and only refer to it, since it has been mentioned.

The judgment will he affirmed.

All concur.