109 Mo. App. 585 | Mo. Ct. App. | 1904
This is an action which was brought on a fire insurance policy issued by the defendant. The salient facts which are disclosed by the evidence may be marshalled in about this way: The plaintiffs in the year 1884 purchased a certain tract of land near Bevier in Macon county, this State. They paid the entire purchase price to their vendor and under a contract with their mother, Louisa Nute, that she would convey said land to them when requested so to do, they caused their vendor to execute a deed conveying the legal title to her; that she and her daughter, Anna Nute — plaintiffs’ sister — resided with plaintiffs on it until the mother’s death in. 1895, and that the.
The affidavit in respect to the loss of the barn which was made by the plaintiffs and their sister Anna stated that the said barn and contents so burned belonged to them as the heirs of Louisa Nute, deceased, and that they were the owners thereof in fee simple.
The integrity of the fire was not put in issue by the pleadings. The defendant denied all liability and pleaded three several defenses:
1. That the indorsement made on the policy by the defendant’s agent already quoted was a warranty of material facts contained in the policy which were untrue — specifying in what — and by reason of which the policy became null and void.
2. That by the terms of said policy it was stipulated that it should be void if any change took place in the interest, title or provisions of the subject of the insurance by the voluntary act of the assured unless indorsed on the policy, and that said Anna Nute, without notice to defendant or consent thereto indorsed on said policy, had conveyed her interest in the subject of the insurance to plaintiffs, the effect of which was to render the said policy void.
3. That the policy contained a warranty ‘in substance that said policy should be void if the insured had concealed or misrepresented in writing or otherwise any material fact or circumstance concerning the insurance or the subject thereof, or in case of any fraud or false swearing by the insured touching any matter relating to the insurance, or the subject thereof, whether before or after a loss; and that plaintiffs had falsely and fraudulently made an affidavit as and for a proof of loss in which they had sworn that the sole title to
The answer also pleaded a counterclaim to the effect that plaintiffs by the false statements contained in their affidavit made misrepresentations in writing of material facts and circumstances concerning the subject of the insurance and constituted false swearing and fraud within the meaning of the policy, whereby defendant was deceived and plaintiffs procured the $1,400, which amount defendant was entitled to recover back, etc.
The plaintiffs’ reply was in substance that at the time of the issue of the policy plaintiffs furnished to defendant’s soliciting agent full and accurate information as to the true situation of the title of said real estate and the said agent then assured plaintiffs that he would himself examine the records and attach to the policy the proper writing and statement, and then and there took the policy for these plaintiffs, and after examining the record, and with full information given by these plaintiffs, attached to the said policy the paper dated Bevier, Missouri, June 11, 1900, and signed by the local agent, as is set out in the second paragraph of the defendant’s answer, and after attaching said paper to the said policy the said agent returned the said policy in a sealed envelope to Michael Nute, plaintiff herein; that the said Michael Nute could neither read nor write, which fact was known to the said agent; that said policy remained sealed as delivered by the said agent, until after the fire and loss, as set out in plaintiffs’ petition; that these plaintiffs relied wholly upon the agent to make the proper indorsement upon the said policy, as he -promised to do; and
Further replying, plaintiffs say that they did, on or about the 17th day of July, 1899, make an affidavit as to the loss of a barn and the contents therein by fire; that the same was supposed to be struck by lightning and burned up, and therein did represent themselves to be the heirs, and all and each of them heirs of Louisa Nute; that they then and there made a full and complete representation of all the facts to the adjuster of the defendant company, and that, too, in the presence of the said agent; that the said agent then and there knew who the heirs of the said Louisa Nute were, and had for years been intimately acquainted with the family and each member of the family of the said Louisa Nute, deceased; that these plaintiffs made no misrepresentation of any kind to the said adjuster or the said agent; that the receipt given for the said loss was prepared by the defendant and its agents with a full statement of all the facts made by these plaintiffs and without any concealment of any kind; that the said loss was claimed in good faith by these plaintiffs and was and is their just due.
And further replying, these plaintiffs say that the said agent had at all times during the life of the said policy full and accurate information of the title to the said premises on which the buildings destroyed and herein sued for were situate; that the said agent had for fifteen years and more been intimately acquainted
At the conclusion of the evidence the defendant interposed a demurrer thereto which was by the court denied.
The evidence clearly shows that the defendant issued and delivered to plaintiff the policy sued on; that plaintiffs paid the premium, and that there was a loss. This was a sufficient showing to take the case to the jury.
“And if it further believed from the evidence that afterwards the terms of said policy were changed, making the said policy payable to the plaintiffs, and that prior to the said change the condition of the title was fully and truly explained to Mr. Hale, and that the policy was turned over to Mr. Hale to have' the change made, and that the defendant, by itself or through its agent, Mr. Hale, with a full knowledge of all the facts regarding the title, executed and attached to the policy the paper read in evidence, dated on June 11,1900, and attached to the policy, then the plaintiffs are not precluded from a recovery upon the policy by reason of any false statement, if any, contained in said attached writing, and the plaintiffs are entitled to recover on the said policy for the amount you may find from the evidence to he due, if any, and claimed not exceeding $1,600 with six per cent interest frojm the date of the filing of this suit, to-wit: August 5, 1902.”
We can not approve the defendant’s criticism of the plaintiffs’ instruction. It — the instruction — embodies a correct expression of the law. The acts and declarations of the defendant’s soliciting agent while writing the policy were those of the defendant. [Ins. Co. v. Wilkerson, 13 Wall. 222; Combs v. Ins. Co., 43 Mo. 148; James v. Ins. Co., 148 Mo. 1; Laundry Co. v. Ins. Co., 151 Mo. 90; Bush v. Ins. Co., 85 Mo. App. 155.]
It appears from the undisputed evidence that the
After defendant’s agent was notified of the fact that Anna Nute had executed a quitclaim deed to the property and of the suit against William Nute for specific performance and to quiet title, unless it was the intention of the defendant to continue the risk it should have cancelled the policy and returned the unearned premium. The defendant, by its indorsement on the policy at such time, led the plaintiffs to believe that it acquiesced in their course of action, and thereafter to claim a forfeiture would be inconsistent with fair and honest dealing. [Millis v. Ins. Co., 95 Mo. App. 211; Thompson v. Ins. Co., 169 Mo. 12.] It seems, to us that much of the reasoning and many of the authorities cited in Ross-Langford v. Ins. Co., 97 Mo. App. 79, uphold the theory of the plaintiffs’ instructions. Most obviously, if the policy or the indorsement thereon or the proofs of loss, receipt or other paper recited false recitals of fact material'to the risk, the presence of such recitals therein must be imputed to the defendant and'not to plaintiffs.
The defendant complains of the action of the court in refusing its fourth instruction which declared as a matter of law that at the time the policy was issued . the property covered by it belonged in equal parts to John W. Nute, Michael Nute, William Nute and Anna Nute, etc. This instruction was properly refused because the evidence shows most clearly that the legal title was in Louisa Nute, and at her death passed to her four children just named, but that she had only the legal title while the equitable title was in the plaintiffs. At her death the title in fee to one-half of the property
The court gave for the defendant three other instructions which told the jury that if it believed from the evidence:
1. “That the plaintiffs knowingly and intentionally made and delivered to the defendant an affidavit in proof of loss, therein stating in substance that John W. Nute and Anna Nute and Michael Nute were the owners of the bam destroyed by fire upon July 6, 1899, and that no other person had any interest therein, and you further find and believe from the evidence that one William Nute was their brother and an heir of Louisa Nute, deceased, and that he had an undivided one-fourth interest in said barn when the same Avas destroyed by fire, then it is instructed that such affidavit would constitute fraud or false swearing within the meaning of said policy, and would render the policy void, and its verdict in such case should be for the defendant.”
2. “If it further find from the evidence that the*, plaintiffs and Anna Nute, in order to procure payment of $1,400 for the loss of the barn and contents, indorsed the draft of the defendant company, dated September 13,1899, for $1,400, which draft recited on its face that they were all the heirs of Louisa Nute, deceased, and it further finds from the evidence that they were not all such heirs, and that such indorsement was knowingly and intentionally made in order to obtain said $1,400, then you are instructed that said indorsement of said draft and the procurement of the $1,400 thereon was fraud within the meaning of the terms of the policy, and rendered the entire policy void. . . .”
3. “It is further instructed that the defendant
After looking at the instructions in their entirety the conclusion is irresistible that they submitted to the jury for its guidance a full and complete expression of the whole law applicable to the undisputed facts of the case.
As we have been unable to discover that any error prejudicial to defendant on the merits was committed by the court during the progress of the trial, it becomes our duty under the statute — section 865 — to affirm the judgment, which is accordingly ordered.