Overton v. American Central Insurance

79 Mo. App. 1 | Mo. Ct. App. | 1899

ELLISON, J.

This action is based on a policy of fire insurance in which'it was stipulated that the assured was the sole and unconditional owner in fee simple. The court gave a peremptory instruction directing a verdict for defendant.

It was stipulated in tbe policy that plaintiff was tlie sole and unconditional owner in fee simple of the property. It was further stipulated that if the interest of the assured in the property be not truly stated, the policy should be void, and that the policy was made and accepted subject to such stipulations and conditions. There was no written application for the insurance and nothing was said, at the time of the verbal application, by either party as to the title.

Ownership' vioíatioñ.°fstipu The case shows and in fact concedes, that plaintiff was not the sole and unconditional owner. The property was owned by her husband prior .to his death and upon his death descended to his heirs and it had never been partitioned. In such state of ease there was clearly no right of recovery. To sustain the action would be, in the face of the provisions of the contract, without a semblance of excuse or reason in avoidance. Barnard v. Ins. Co., 27 Mo. App. 26, and authorities cited.

j — ¡failureto read: acceptance. It is suggested that plaintiff did not read the policy, but put it- away until after the fire. The terms of the policy were nevertheless binding upon plaintiff. It must be assumed that by acceptance she was a a a acquainted with its terms. Accepting the policy with such conditions and stipulations unaccompanied by a true statement of the title amounts to a declaration that the title is absolute. Mers v. Ins. Co., 68 Mo. 127. Unless the agent himself knows the true state of the title.

The foregoing is unquestionably the law as it has been declared in this state and we regard the authorities cited by plaintiff from this state as inapplicable.

Other points were made and discussed but what we have said suffices to determine the case. The judgment, under the law, was manifestly for the right party and it is affirmed.

All concur.