154 Mo. App. 394 | Mo. Ct. App. | 1911
This action is based on a policy of fire insurance issued to plaintiffs, .insuring their fixtures and stock of general merchandise in the town of Willard in Greene county for $2600. In the trial the plaintiffs obtained a verdict for $2600, and defendant perfected its appeal to this court.
“It is a condition of this policy, if at the time of loss the assured shall hold any policy of this or any other company, on the property hereby insured, subject to conditions of coinsurance, percentage of value, or average, or Inventory and Iron Safe Clause, this Company’s liability herein shall be limited thereby to the same extent as though such clause were contained in this policy.”
The evidence showed that plaintiffs did have coinsurance in five other companies, amounting to $4650, and that in the policy issued to plaintiffs by the Aetna Insurance Company — one of the five — was contained the following provision:
“Boohs and- Inventory to le Kept or Insurance Void.- — It is a part of the consideration for this insurance and it is expressly warranted, that the assured above named shall take an.inventory of the stock above described at least once a year, and shall also keep correct books of account in detail showing all purchases and sales of the same, and shall keep all inventories and books in a fireproof safe, or other place secure from fire in said store during the hours said store is closed for business, or this policy shall be void.”
The evidence showed that one of the plaintiffs met the man who represented himself to be the agent of the defendant at a meeting of retail hardware merchants in Springfield, Missouri, and that a few days thereafter this agent called on plaintiffs, who were partners in the general merchandise business, at Willard, and sought to sell them a policy in his company. He arrived about nine o’clock in the morning and remained all day. Mr. Shook testified: “Q.. State the conversation of the agent with reference to the question of complying with the iron safe clause, and also whether or not he had any knowledge of the other policies, and whether or not you were complying with the provisions of the other policies with reference to the iron safe clause? A. He asked me
J. E. Leonard, a'witness for the plaintiffs*' testified that he was in the hardware business at Springfield, and was Secretary Of the Retail Hardware Association; that he thought the name of the agent who- solicited this insurance was H. V.' Mercer; that this agent made an address at the convention in Springfield in the interest of his company on the subject of mutual insurance.
On December 28, 1909, at about two o’clock in the morning, plaintiffs suffered a total loss and at once wired defendant, notifying it of the loss, and also wrote defendant two or three letters, receiving an answer, dated January 3', 1910* stating that the matter had been placed in the. hands' Of the Western Adjustment Company, of Kansas City, for adjustment. ' An adjuster, representing this adjustment company, soón: ariived at Willard and asked plaintiffs where their books'wer’e and they told him the books were detroyed by fire ;"hé'inquired if the other policies had been settled, and, upoii being
The evidence showed that plaintiffs settled Avith the other five companies as follows:
Company Insured Paid.
Aetna, $1000 $452.82
National, 500 195.73
Hartford, 1150 541.46
Hanover, .1000 391.46
Phoenix, 1000 391.46
$4650 •$1972.43
At this rate, the appellant — its policy being for $2600 — wouid be entitled to settle for $1017.80.
Some time after the adjuster left, plaintiffs received on offer of $1017.80 as appellant’s proportional part of the loss (though the terms of this offer do not appear in the record) to which plaintiffs replied: “This amount is not satisfactory with us. We took out this $2600 policy to cover an addition we made to our business during the summer, and the adjusters of the other .companies took our invoices of January 1, 1909, not taking into consideration the addition we made after this invoice was taken. We have duplicate invoices slowing that we had $12,000 worth of goods on hand at the time of the fire, after deducting our sales for that year. There is no justice in our settling with the H!. M. Co. for anything like that. The H. M. Co. knew all about all the insurance we had, for they examined every policy, and looked over our stock, and suggested this amount themselves. We paid them their premium in full' and we claim the full amount of the policy. We feel that we did not get fair treatment by the other companies, but that is no reason why we should not have fair' treatment by the H. M. Co. If you want to
At the close of plaintiffs’ evidence the defendant offered and the court refused to give an instruction in the natnre of a demnrrer to the evidence, and it is of this that defendant now complains. If the'defendant offered any evidence at the trial it is not preserved for onr consideration.
It will be seen from the foregoing that there was evidence for the jury on the issne of waiver by the agent who solicited the insurance of the iron safe clause appearing in the Aetna policy. This agent was not placed on the stand and nothing whatever appears as to the extent of his authority. Plaintiffs testified they never saw him again. He may have been a high official in the company or an agent with very limited powers. There was no evidence that he was merely a soliciting agent. As is well known, in conducting the insurance business, the insurance company acts through general or special agents. There may be agents who have authority only to solicit insurance and submit applications to the company and who have no authority to make any contracts in its behalf not relating to the taking of the policy, or agents with full power to bind it. While in certain cases, the authority of an insurance agent may be limited by notice brought home to the insured, as, for instance, by an express limitation in the policy, restrictions and limitations of which the insured had no notice are not binding on him, but such a limitation is not notice to the insured of the agent’s want of power to bind his principal as to transactions before delivery of the policy. [22 Cyc. 1430.] The power of the agent whether general or special is determined by the nature of the business intrusted to him and is prima facie coextensive with its requirements and the company is therefore bound by the acts of the agent within the
The evidence shows that plaintiffs acted in the utmost good faith, concealing nothing. They gave the agent to understand they were not complying with the iron safe clause in the Aetna policy and did not intend to and he gave them every assurance that it was not required by his company and accepted the premium with that understanding. Whether the application which plaintiffs executed contained any provision on the subject we cannot say because it is not before us. No evidence as to its contents is set forth in the abstract although presumably in the possession of the defendant. Nor does it appear by whom the policy was issued or delivered or whether it was countersigned by the soliciting agent. Only certain clauses of the policy are inserted in the abstract and we have no way of knowing whether the policy was issued by Mercer, the agent, or whether it was countersigned by him, or whether he was the writing agent for the defendant company.
The facts of this case distinguish it clearly from those cases where the insured deals with the insurer through an agent with only special or restricted pow
Defendant in this case objected to all testimony regarding conversations between plaintiffs and Mercer, the defendant’s agent, tending to show any agreement made by them anterior to the issuance of the policy that the Inventory and Iron Safe Clause in the Aetna • policy should not be obligatory. Agents of insurance companies, vested with authority to make contracts and to insure property stand in the place of the company in dealing wdth applicants for policies and may waive stipulations which purport to be' essential to the validity of the contract. [Rudd v. Fire Ins. Co., 120 Mo. App. l. c. 11, 96 S. W. 237, and cases cited; Riley v. Insurance Co., 117 Mo. App. 229, 92 S. W. 1147.] According to these authorities, this rule prevails over a restriction in the policy prescribing a particular mode in which its terms may be waived or designating particular persons who alone have powder to waive a term. .[Rudd v. Fire Ins. Co., supra; United Zinc Companies v. General Accident Assurance Corporation, 144 Mo. App. 380, 128 S. W. 836.] Whatever the condition of the law may be in other jurisdictions, the questions involved in this record and vital to the determination of
If the soliciting agent has the authority to make a parol contract with the insured at the time such contract is made and premium paid, and does make such a contract to eliminate from the policy the so-called iron safe clause, such agreement is binding upon the insurance company. If such agent, having made such
The evidence in this case authorized the court to submit the questions involved to the jury. There was evidence to sustain the plaintiff’s claim and the finding of the jury in their favor is binding upon an appellate court.
The policy in this case contains the provision that in the event of a loss, if the insurer and insured differed as to the amount of the loss sustained, the amount should be ascertained by appraisers.
This being a total loss, and the adjustment company offering to pay the sum of $1017.80 as appellant’s proportional amount, no appraisement was necessary. The appellant and respondents did not disagree as to the amount of the loss. The five other companies had settled the claims against them for considerably less than the face of their policies, and appellant, in making this offer (the terms of which- do not appear in this record) simply claimed the benefit of the settlement made by the other insurance companies. The law is well-established that failure to appraise is only available as a defense when the parties disagree as to the amount of the loss. If the company wholly denied liability, or put its refusal to pay on other grounds which were inconsistent with the purpose to insist on an appraisement, such conduct would waive the appraisement. [Gragg v. Ins. Co., 132 Mo. App. 405, 111 S. W. 1184; Ball v. Ins. Co., 129 Mo. App. 34, 107 S. W. 1097.] We think under the evidence the appellant waived the clause as to appraisement, the offer being a virtual admission of the amount of plaintiffs’ loss but a claim that appellant was entitled to the benefit of the settlement which the insured had made with the other companies, and it accordingly offered the sum of $1017.80 as its pro rata share. Plaintiffs replied,
Instruction No. 1 given' by the trial court for the plaintiffs is as follows:
“If you find and believe from a preponderance of greater weight of the evidence that the property described in the policy of insurance was destroyed by fire on the 28th day of December, 1909, at Willard, Greene county, Missouri, and that said property so destroyed was at the time contained in the building mentioned in said policy of insurance, and if you further find that plaintiffs, W. E.- Shoot and Karl Farmer, were partners and the owners of said property at the time of the delivery of said policy and loss of said goods and if you find that at the time of the application for said policy the duly authorized soliciting agent of defendant knew that there was other insurance on said property, and that he examined the other policies of said insurance and knew at the time the plaintiffs were not complying with the iron safe clause mentioned in said other policies and knew that plaintiffs were keeping their books of account and inventories in said store in a drawer of a desk therein, and if you find that said agent knew that plaintiffs had not and did not intend to comply with the provisions of said iron safe clause mentioned in said other policies and with such knowledge agreed that said provision would not be required by defendant, then you will find said provision was waived by the defendant and its duly authorized agent.
“And if you find that plaintiffs kept books of account in detail showing all purchases and sales of the stock of goods described in said policy and that an inventory of said stock by plaintiffs was taken within a year prior to the delivery of said policy and that said1 boobs of account and inventory were destroyed by fire and if you further find that after said loss the duly a%>
The clause in the above instruction which we have written in italics is objected to by the appellant on the ground that there was no evidence authorizing its sub: missioq to the jury. We find that the adjuster in fact made no such agreement or statement, but that prior to his arrival the appellant wrote respondents a letter advising them that the matter had been placed in the hands of the Western Adjustment Company “who will call on you at once and we trust they will fix you up to .your satisfaction.” The manifest object of the clause in the instruction referred to was to show the facts under which the jury would be authorized to infer a waiver. Under the view we have taken, the question of waiver after the loss is wholly immaterial to any issue in this case; and while this clause in the instruction, not being based upon the evidence in the case, undoubtedly is subject to criticism, it is wholly immaterial, and, following the injunction of the statute in such case, is not such error as to work a reversal of the judgment.
From a full examination of the evidence and: instructions in this case, we are satisfied that the finding