Ormsby v. Laclede Farmers' Mutual Fire & Lightning Insurance, 105 Mo. App. 143

105 Mo. App. 143 | Mo. Ct. App. | 1904

ELLISON, J.

This is an action on a fire insurance policy. The judgment was for plaintiff. The cause was here on another occasion and will be found reported in 98 Mo. App. 371. It was there reversed and remanded on account of errors in instructions for the plaintiff. It was again tried and errors before pointed out were avoided. At the last trial the only witness was the plaintiff himself. The other evidence for plaintiff consisted of the policy. Defendant only introduced the application and the defendant’s by-laws, and its only instructions offered were demurrers, one at the close of the case for plaintiff and one at the final close. Both were refused. These demurrers conceded tin truth of plaintiff’s testimony.

The defense is not an attack upon the truth of the testimony, but its sufficiency to sustain the judgment. Defendant insists that its demurrers should have been given on the ground that plaintiff by his application stated that he had not had any fire previous to the present policy and that he warranted such statement to be true. Defendant insists that the warranty is binding absolutely, whether material to the risk or not. That the statute, sections 7973-7976, Revised Statutes 1899, which makes of warranties mere representations, unless they are material to the risk, does not apply to farmers’ mutual companies. Section 8079. It is not necessary, in this case, to discuss or decide that proposition. The reason is this. It appears without dispute that defendant’s agent who procured the insurance and who took the application had plaintiff to sign it in blank and leave it with him. . That he then after-wards himself filled it out. . That the statements now relied upon by defendant as warranties to defeat the policy were not plaintiff’s statements, but were those of the agent. That although he signed the application as afterwards presented to him by the agent he had nothing to do with the statements therein contained and did not know what they were. These facts malee the statements in the application the statements of the defendant itself and not this plaintiff, and it is estopped to claim them as warranties. Ins. Co. v. Wilkinson, 13 Wall. 222; Rowley v. Ins. Co., 36 N. Y. 550. We made a decision to the same effect in Thomas v. Ins. Co. 20 Mo. App. 150 and in Shell v. Ins. Co., 60 Mo. App. 644. And so did the Supreme Court in Combs v. Ins. Co., 43 Mo. 148, and other cases.

So, in point of fact, the ground upon which defendant asked its peremptory instruction is without support.

The judgment being manifestly for the right party, and as no other judgment could have been rendered on the facts shown, it will be affirmed.

All concur.