66 Mo. App. 29 | Mo. Ct. App. | 1896
This suit is upon a policy of insurance alleging performance of all its conditions by the assured. The policy was for $500, and issued for five years from September 23, 1889. It covered a dwelling house, which was destroyed by fire on August 30, 1894. Payment being refused, judgment is prayed for the amount of the policy. The defenses were that the policy was obtained by fraudulent representations, and
The first error assigned is that the court by instruction number 1 for plaintiff told the jury that, if they found for plaintiff, their verdict should be for the full amount of the policy. It is claimed this instruction contravenes the terms of the policy and the law. This objection is not well taken. Despite the terms of this policy providing for a deduction from the cash value of the property at the time of the fire for depreciation, if any, plaintiff’s recovery upon a total loss extended to the full amount of insurance shown on the face of the policy, since the policy was issued under the law governing such contracts prior to the present revision, which only went into force on November 1, 1889. R. S. 1889, sec. 6614. The act previously regulating the amount recoverable on such policies was section 6009, of the Revised Statutes, 1879. By its terms the amount stated in the face of the policy was conclusive as to the recovery upon a total loss.
Appellant next complains of the instruction, given for plaintiff, submitting the question of waiver of proofs of loss. In connection with other facts given in evidence for' the purpose of showing a waiver of the clause of the policy requiring proofs of loss, plaintiff testified that a local agent of defendant, not shown to have general authority or empowered to issue and countersign policies, told the assured after the fire that it would not be necessary to prepare proofs of loss, and that he (the agent) would telegraph and write the company. If this evidence had been objected to, it would doubtless have been excluded; for it is well settled that a subordinate agent of an insurance company,
Our conclusion is the judgment should be reversed and the cause remanded. It is so ordered.