Rissler v. American Central Insurance, 150 Mo. 366

150 Mo. 366 | Mo. | 1899

GANTT, P. J.

This is an action on a policy of insurance by defendant to plaintiff.

The policy contains this provision: “In consideration of the stipulation herein named, and of $72.85 premium, the American Insurance Company of St. Louis does insure Geo. 0. Bissler for the term of one year from the twenty-first day ■of December, 1895, at noon, against all direct loss or damage by fire except as hereinafter provided, to an amount not exceeding $4,700 to the following described property, while located as described herein and not eleswhere, to wit; $200 on store and office furniture and fixtures including show •cases and iron safe; $4,500 on stock of general merchandise.”

The petition is one count.

Defendant filed a motion to compel plaintiff to elect upon which cause of action stated in the petition he would rely, which motion was overruled and defendant excepted.

The risk was solicited by E. H. Harris, a banker at Pilot Grove, and agent of defendant at that place.

The execution and delivery of the policy, the ownership of the property by plaintiff -and its destruction by .fire during the term covered by the policy, are not denied.

In the written application prepared by Harris, the agent, is the following stipulation: “And the said applicant hereby covenants and agrees to and with said company that the foi*e-going is a just, full and true exposition of all the facts and circumstances in regard to tie condition, situation, value and risks of tie property to be insured, and said answers are to be considered the basis upon which this insurance is effected, and the same is understood to be incorporated in and as forming a part and parcel of the policy to- be issued hereon, and a special warranty by and upon the part of the applicant.” Plaintiff’s name was signed immediately under the foregoing.

In the application the following questions and answers appear:

“IIow often do you take an inventory of stock?” A. “'Yearly.”

“Do you carefully preserve the inventory?” “Yes.”

“What was the date of the last?” “January, 1895.”

“What was the amount of the last inventory?” A. “$6,200.”

“Do you keep a cash book and merchandise account?” A. “Yes.”

“Have you ever suffered loss of property by fire ?” A. “No.”

It is admitted that plaintiff signed the application after the answers were written as above, with full knowledge that they were so written.

The defendant in its answer sought to avoid liability on the policy solely on the ground that the above answers were untrue; that plaintiff did not make an inventory yearly; did not take an inventory January, 1895, but his last inventory was January, 1894, and did not amount to $6,200 but to $5,500 only, and plaintiff previous to- the time of the application had suffered loss by fire.

The reply set up, and the evidence introduced upon the trial established these facts: E. II. Harris, who issued the policy, was the agent of the defendant company. He had authority from it to solicit insurance, receive premiums and issue policies, which were left with him in blank. He could make it a completed contract of insurance. He visited plaintiff at bis place of business and offered to insure his stock of goods, as well as the furniture and fixtures contained in his storehouse. Defendant’s said agent had with him a blank application, which he filled up in plaintiff’s presence. When the questions in regard to the last inventory were asked, plaintiff told the agent that it was taken in 1895 or 1894, and that he did not remember which; that he had said inventory in his safe and started to get it and give the exact date. The agent wrote, “1895,” and the amount, and told plaintiff that it was not material to examine the inventory for the exact date; that the train was coming upon which the agent desired to leave, and asked plaintiff to sign the application, which he did. The agent said in his testimony that Rissler told him that he would look at the inventory and get its date, but that he (the agent) replied that it didn’t amount to anything anyhow, that the agent knew he had taken the inventory in 1894, because he had seen it, and that he had a full stock of goods. Plaintiff was prevented by the agent himself from giving him the exact date, and signed the application after having told the representative of the company, that he did not know whether the last one was taken in 1895 or 1894, and upon the representation, by the said agent, that it was not material for him to be particular about the exact date.

In answer to the question, whether he had ever suffered loss by fire, he called the attention of the agent to the fact that Huyett & Rissler, about five years before, had suffered a loss in a company represented by said agent. Mr. Harris replied that he knew all about that, but the question referred to fires where the plaintiff was alone concerned, and that it did not mean partnership loss. The agent had full information upon this subject and it was expressly called to his attention by plaintiff and the agent represented to plaintiff that the question did not refer to any losses except those sustained by him individually.

The agent wrote and filled all the answers in the application and upon his statement that they'were satisfactory and that he was in a hurry to make the train plaintiff signed the-application.

The circuit court instructed the jury that if they believed the application was prepared by defendant’s agent with full knowledge as to the date and amount of the plaintiff’s last inventory and of the loss by fire suffered by plaintiff and his partner five years previous -and that said agent had authority to solicit insurance for defendant, to collect premiums and issue its policies, and that plaintiff had truthfully disclosed all the facts to said agent, then the policy could not be avoided on account of the written, answers contained in the application.

Plaintiff upon the trial, testified that the goods destroyed by the fire were worth, at the time of the destruction thereof, about $7,500, and his fixtures and furniture, three or four hundred dollars. He also proved the value of the goods by his two clerks, who were familiar with the same-. The defendant objected to this evidence because the policy required that an inventory should be taken, and books kept showing the daily transactions, the amount purchased for cash and on credit, and if plaintiff had these books, the loss could be arrived at with some certainty, and that his opinion of the value of the goods was not competent. The court overruled this objection, and permitted the witnesses to state what the goods destroyed were worth, and defendant excepted.

No notice was given by the defendant, requiring the production of the books and papers, and no request made for an opportunity to examine them.

There was a verdict and judgment for plaintiff for the amount of the policy, and the ease is now here on defendant’s appeal. Tbe three rulings of the lower court, referred to in the above statement are the errors assigned.

I. There was no error in refusing to require plaintiff to elect which cause of action he would prosecute. The petition only alleged one cause of action.

When a contract contains several stipulations, a petition.' which alleges breaches of the different stipulations is not-open to the objection of having joined two causes of action in one count. [Comstock v. Davis, 51 Mo. 569; Brooks v. Ancell, 51 Mo. 178; Newton v. Miller, 49 Mo. 298.]

There is nothing in Trabue v. Dwelling House Insurance Company, 121 Mo. 75, which changes the rules of.' pleading. It was simply ruled in that case that the contract: was a severable one and where for some reason the policy might be avoided as to the real estate insured, it might still be good as to the personal property.

II. The objection to the testimony of plaintiff as to-the value of the goods is clearly not tenable. Let it be' granted that the plaintiff was required to keep a set of books- and that defendant by giving notice could have required plaintiff to produce said books, still this does not change well settled rules of evidence and determine that nothing but the books are evidence. The competency of the books did not-render other evidence incompetent. [Seyfarth v. Railroad, 52 Mo. 449.] The evidence was not otherwise objectionable.

III. The decisive point however in this case was raised by the demurrer to the evidence, which was based upon the proposition that the written answers to the questions in the application were not true and that the knowledge of the agent who prepared the apjjlicafion and his construction off what the questions meant could not vary the policy.

The case certainly presents the question very sharply..

The evidence does not admit of a doubt that plaintiff frankly and truthfully stated the true facts to the agent in. regal’d to the previous fire wMob bad destroyed the store of Huyett & Rissler, and that tbe agent advised bim that tbe question only referred to a previous fire by wbicb tbe plaintiff alone suffered loss. Equally dear is tbe fact that wben tbe question was asked as to tbe time when tbe last inventory was taken plaintiff distinctly stated that be was not certain but would get tbe inventory itself and ascertain the date and was assured by tbe agent that be need not get it, that it was not material to lo'ok for tbe date of tbe inventory; that be knew be bad taken an inventory in 1894, and was in a burry to make tbe train wbicb was then in sight and tbe agent wrote “1895” and by this means obtained plaintiff’s signature.

There is not tbe slightest ground for charging fraud or collusion between tbe agent and plaintiff and none is charged.

Clearly tbe agent misled tbe plaintiff into supposing, first, that tbe firm’s fire should not be reported, and, secondly, that tbe date of tbe last inventory was wholly immaterial.

Do tbe facts that bis former firm bad been burned out, and that tbe last inventory was made in 1894 instead of 1895, under tbe circumstances, avoid tbe policy ?

In Parsons v. Fire Ins. Co., 132 Mo. loc. cit. 592, it was held by this court “that an agent of an insurance company authorized to make contracts of insurance in tbe name of bis principal, to countersign, issue and deliver policies, and receive tbe premiums therefor, is clothed with tbe full authority of bis principal, and may waive conditions contained in tbe printed policy be issues to tbe insured, to whom be stands in tbe place of bis principal in making tbe contract of insurance.”

Tbe agent, Mr. Harris, in this case bad all tbe powers enumerated in tbe Parsons case and that be waived tbe date of tbe last inventory 'and tbe mention of tbe fire by tbe assured is not open to doubt under tbe evidence.

That sucb an agent may waive tbe printed stipulations in tbe policy is now well supported by tbe bigbest authority.' [1 Joyce on Insurance, sees. 472, 477 and 493, and -authorities cited.]

In 2 Wood on Eire Insurance (2 Ed.), pages 842 and 844, it is laid down by tbe learned author that “in all cases where tbe agent, filling up tbe application, is clothed with real or apparent authority to make a contract of insurance, or to insure, and to bind tbe company in that respect, tbe agent knowing tbe facts, tbe principal is estopped from claiming that be has been misled by sucb omissions or misstatements,” and “it has been held that the explanation of questions, is-within tbe scope of tbe agent’s authority, and that if through bis direction o-r advice a question is erroneously answered, tbe principal must bear tbe consequences and not tbe assured.”

These conclusions accord with our experience. Tbe agent represents tbe company. He is presumed to be more intimately acquainted with tbe business of insurance than those whom be solicits. Tbe average man relies upon tbe knowledge and skill of tbe agent to properly prepare tbe application -and relies upon tbe authority which tbe agent assumes. He rightly considers that when tbe agent is told1 tbe facts that be knows which are material and which are not. It is within tbe apparent scope of tbe agent’s authority to decide what is a satisfactory -answer and when with full knowledge of tbe facts be assures tbe applicant for insurance that a portion of them are immaterial and himself erroneously misstates others without tbe slightest suggestion of fraud on tbe part of tbe insured, tbe company who accredits him must suffer from bis mistakes and not tbe innocent policy bolder. [Franklin v. Fire Ins. Co., 42 Mo. 456; Combs v. Ins. Co., 43 Mo. 148; Ins. Co. v. Olmstead, 21 Mich. 246;. s. c., 4 Am. Rep. 483; Kausal v. Ins. Ass’n, 31 Minn. 17; s. c., 47 Am. Rep. 776; Ins. Co. v. Wilkinson, 13 Wall. (U. S.) 222; Ins. Co. v. Baker, 94 U. S. 610; Hotchkiss v. Ins. Co., 44 N. W. 1106; Parsons v. Ins. Co., 132 Mo. 583.]

In Combs v. Ins. Co., supra, this court said, “when tlio disclosure respecting the solicited risk is frank and full, and the insurance company accepts it and appropriates the premiums, and a subsequent loss occurs, the indemnity contracted for should be fairly met and realized to the assured.”

This case presents the naked question whether an insured must lose his insurance because the agent to whom he made a full and honest disclosure made a mistake as to what statements were material to the risk and by his advice leads the insured to make an erroneous statement or a misstatement.

¥e hold that the loss must fall on the company on the ground that die knowoldge of its agent is imputable to it and knowing all the facts when it takes the premium and assumes the risk it is estopped to set up and repudiate the indemnity because of the carelessness, ignorance or fraud of its own representative, which it has clothed with the full authority of the principal. Were we to hold otherwise, in the language of Judge Cooley in Ins. Co. v. Olmstead, supra, “it is easy to see that the community is at the mercy of these insurance agents, who will have little difficulty in a large proportion of the cases, in giving a worthless policy for the money they receive.”

It is no hardship to hold insurance companies bound for the acts of its agents whom it authorizes to solicit insurance and countersign, issue, and deliver its polices.

The old maxim Uqui faait per alvum,facit per se” applies in all its ancient vigor to such a ease.

We find no error in the judgment of the circuit court and it must be, and is affirmed.

Sheewood and Bubgess, JJ., concur.