Mensing v. American Insurance

36 Mo. App. 602 | Kan. Ct. App. | 1889

Ellison, J.

— This action is based on a policy of fire insurance which referred to a written application which had been made by the assured and made such application a part of the policy. The application stated the property to be a dwelling house, and though signed by the assured, it was written by defendant’s soliciting agent. The policy provided for proofs of loss within thirty days after the fire. On the back of the policy, in large type, was the following :

“notice to policy holder,

“Insurance in this company is confined to farm houses, barns, and out-buildings ; private dwellings and private barns in towns, churches and school houses, and such personal property as is usually contained in such buildings, and no authority is given any agent to take any application in any other class of property, and not upon any property exposed within one hundred feet of a store, hotel, public boarding h ouse, mill, manufacturing establishment, or other extra or special hazard.”

The property was a boarding house with a saloon in the front room. The fire occurred August 7, and on September 4, defendant wrote to plaintiff the following letter.

“Your favor of August 21, to Chas. L. Currier, Esq., touching claim of J. H. Mensing, has been referred to me. Permit me to say that the company denies any and all liability to Mr. Mensing whatever.”

I. The defendant having notified plaintiff during the currency of the time in which proof of loss might have been made, that it would recognize no liability whatever on account of the fire, thereby absolved the plaintiff from the duty or necessity of proving the loss. Boyd v. Ins. Co., 70 Iowa, 325; Cobb v. Ins. Co., 11 Kansas, 93, and cases cited. Notice to plaintiff within the time, when proof might have been made, was tantamount to a declaration that, though the loss should be proved, payment would not be made.

II. But there is another important branch of this case which, in my judgment, prevents a recovery by the plaintiff. The assured stated in his application that the property was a dwelling house, and recognizing that it was in fact a boarding house and saloon, he seeks to avoid the statement in the application by the contention that such statement was fraudulently written by the .agent without his knowledge, and that he was not aware ■of it being so stated, till after the loss had occurred. That the agent knew the kind of property it was, as he was in the building when the application was made, and that he took a drink, or a cigar with the assured at the bar of the saloon; and he invokes, in the support of this ■contention, the line of cases of which Thomas v. Ins. Co., 20 Mo. App. 150, and cases therein cited are types.

But those cases are distinguishable from the one at bar in this vital particular: In the Thomas case, there was no limitation on the agent’s authority brought home to the assured. In this case, the policy upon which the .action is founded contains on the back thereof, in plain type, a limitation of the agent’s authority. This stood as a notice to the assured, that the agent had not the power or authority to insure a boarding house and saloon. The defendant has the right, as has any other principal, to limit the authority of its agents. Any other rule would render much of the business of the company so hazardous as to work its destruction. Ins. Co. v. Fletcher, 117 U. S. 519; Marvin v. Ins. Co., 85 N. Y. 278; Bank v. Ins. Co., 62 Texas, 461. The effect of a recovery by plaintiff would be to hold defendant liable to plaintiff for a risk it declared ,to him it would not take.

It is, however, urged that plaintiff did not know that his property was described as a dwelling, and that he did not know of the limitation of the agent’s authority which appears on the policy. As there was no proof or fraud, this is not a valid excuse. It was Ms duty to examine the application and the policy, and he will be presumed to know of their contents. Palmer v. Ins. Co., 31 Mo. App. 467, and cases cited; Ins. Co. v. Neeberger, 74 Mo. 167. The testimony showed that plaintiff had insured with the defendant company in three other policies, issued at times prior to this one, each of which contained the same provision restraining the agent’s authority.

The judgment should be reversed, and it is so-ordered.

All concur.