104 Mo. App. 146 | Mo. Ct. App. | 1904
This action is upon a policy of insurance issued December 27, 1901, covering “$1,500 on the shingle roof frame building and additions, including' foundations, occupied as a private house.” January 4, 1902, consent was endorsed on the policy for occupancy of the barn by a careful tenant, and January 22, 1902,' the bam was burned. From judgment upon the verdict ’ of the jury in favor of plaintiff, defendant has appealed and in this court chiefly one objection to the judgment below is encountered; namely, that defendant was not permitted to introduce .evidence tending to prove that the policy was obtained by fraudulent representations anterior to the issuance of the policy respecting the value of the building, which was material to the risk. There was no written application taken for the policy, and it was solicited and obtained by the local agent of appellant, and the conversations between this agent and plaintiff in the negotiations preliminary to his acceptance of the risk, were sought to be elicited and were excluded by the court upon objections thereto by plaintiff. At the threshold of the case it may be stated that the answer contained no averment that but for the alleged false statements the policy would not have been issued.
In Christian v. Ins. Co., 143 Mo. 460, the Supreme Court intimated that unless the answer pleads that the policy would not have been issued had the company known the real state of the facts, no issue of misrepresentation is made, and in Summers v. Ins. Co., 90 Mo. App. 691, this court, citing the above decision, held an answer insufficient containing no allegation that defendant would not have issued the policy had it known the real state of facts misrepresented by assured in his application. While this principle is thus invoked and made applicable in this State to accident and life insurance policies, by analogy it would apply with equal force to insurance against fire and has been so directed in other jurisdictions. Aetna Ins. Co. v. Simmons, 69 N.
It is sufficient to dismiss these contentions with the response, that there was substantial testimony upon these issues introduced by plaintiff, and they were properly questions of fact for the jury, and so properly considered by the trial court and submitted under proper instructions. The testimony at the trial further disclosed that the soliciting agent had been the defendant’s representative at Kahoka, his place of residence, for many years, and was familiar with the barn insured; that he passed it frequently, and was at a short distance from it and in plain view of it, when negotiating-the policy here concerned. Under such a state of facts the language of the Supreme Court employed in Daggs v. Ins. Co., 136
“The manifest policy of the statute is to prevent, rather than encourage, over-insurance, and to guard, as far as possible, against carelessness, and every inducement to destroy property in order to procure the insur-. anee upon it. It was also designed to prevent insurance companies from taking reckless risks in order to obtain large premiums by advising them in advance that they would be held to the value agreed upon when the insurance was written.
“No company is bound to insure any piece of property without first making a survey and examination of the premises, and it is not compelled to insure the full value of them. But having the opportunity to inspect fully before insuring, and then fixing the amount of the risk, and receiving the premium based upon such valuation, it ought to be forever estopped, in case of a total loss, from denying the valuation agreed upon; and such was the law long before this statute was enacted.”
The case was fairly tried, the instructions given correctly stated,the law and the judgment is affirmed.