Scott v. German Insurance

69 Mo. App. 337 | Mo. Ct. App. | 1897

Bond, J.

Plaintiffs recovered judgment on an insurance policy, covering a dwelling house, smoke house and personal property for $772.97. Defendant appealed.

Proofs of loss: evidence: finding. It is insisted that the evidence adduced to show that proofs of loss were duly furnished was insufficient for that purpose. The fire happened on the eighth of October, 1894. The defendant is a nonresident corporation. Banks and Harrison are state agents in Missouri. There was evidence tending to prove that plaintiffs sent proofs of loss to the defendant on the second of November, 1894; that they also sent proofs of loss by registered letter to the state agents on November 22, 1894. On the trial defendant, upon notice to that effect, produced proofs of loss, whose formal correctness is not questioned, and which bore a pencil memorandum, to-wit, “Rec’d by express 11, 5, ’94. W. T., Sec’y.”

There was proof that William Trembor was the secretary of defendant. It is not quite clear from the evidence whether the proofs of loss produced on the trial were those sent direct to the defendant, or those afterward sent to its agents in Missouri. If the former was the case, the thirty days allowed by the policy for furnishing proofs of loss had not elapsed when they were received by the company. The verdict of the court, sitting as a jury, resolved this doubt in favor of plaintiffs. Hence this assignment of error will be ruled against defendant.

Application breach of warranty: evidence estoppel. The next complaint is that the court refused to declare the law to be, that plaintiffs could not recover the insurance apportioned to the building. Defendant insists that this declaration should have been made, inasmuch as the application for the insurance contains the following question and answer: “Are you the sole and undisputed owner of the property insured?” “Yes.” Whereas it, was showm on the trial that the dwelling house was built upon a lot inherited by the plaintiff’s wife from her father, and the policy made the statements of the application warranties. The evidence is, that the application contains a provision that “if the applicant is a married woman, her husband must sign” it; that the application for the policy in suit was written out by the agent of the company authorized to take the same; that plaintiffs disclosed to him at the time the true state of the title to the lot. The plaintiff husband informed the state agent that he had no “interest in it whatever” except what accrued to him by virtue of his marital rights; that notwithstánding this notification, the said agent wrote the above answer, and the company thereafter issued the policy. This estops the defendant from making the defense of breach of warranty in the application. Parsons v. Fire Ins. Company, 132 Mo. loc. cit. 590; Mining and Smelting Co. v. Amer. Fire Ins. Co., 62 Mo. App. loc. cit. 297; Beach on Ins., sec. 374. The principle underlying these cases is that the company by appointing an agent to take and record the statements of applicants for its policies intrusts him with apparent authority to receive and record truthful answers. Hence whatever is done by him within the scope of the authority conferred, is to be deemed the act of the company. There was nothing contained in the application signed by plaintiffs which in any way limited or restricted the ostensible authority of the agent to act for the defendant in taking the same. As the evidence tends to show that he was fully informed at the time as to the ownership of the respective parties to the real estate described in the application, if there was any breach of warranty, the defendant company is chargeable with knowledge thereof, and having subsequently issued its policy, is concluded from relying upon such breach after a loss. The result is that the judgment in this case will be affirmed.

All concur.