Shoup v. Dwelling-House Fire Insurance, 51 Mo. App. 286

51 Mo. App. 286 | Mo. Ct. App. | 1892

Ellison, J.

This action, is founded on a policy of insurance containing the following stipulations: “Dwelling-House Insurance Company of Boston,. Massachusetts, in consideration of the stipulations, herein named, and of $21.50 premium, does insure A. B. Shoup against all direct loss or damage by fire or lightning, except as hereinafter provided, to an amount not exceeding, etc.

“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any fact or circumstance concerning this insurance, or the subject thereof; or if the interest of the insured in the property be other than the absolute interest and not so and truly stated herein. * * *

“This entire policy shall be void if the interest of the insured be other than •unconditional and sole ownership, free from all liens whatever; or if the subject of the insurance be a building on ground not owned by the insured in fee simple.

“By the acceptance of this- policy the insured covenants that the application herefor shall be and form a part hereof, and q warranty by the insured, and the company shall not be bound by any act or statement Diade to or by any agent unless inserted in this contract. ”

The application for insurance represented plaintiff to be the absolute and sole owner in fee of the property insured, and . of two hundred acres of ground upon which it stood. The facts were that plaintiff, as a widow, only had a homestead interest for life in the property, she also having a large family of children. Plaintiff, however, seeks to avoid the discrepancy between her representation in the application and the fact, by showing that the agent of the insurance company who solicited the insurance wrote out the application which she signed, and that she informed him verbally of the true state of the title. It has been held in this state that an insurance agent will be taken and assumed to have power to do that for his principal which is within the range of the apparent authority with which the company has clothed him. And that in cases where the agent himself knew or was informed of the true state of the title it would be taken to be the knowledge of the company, notwithstanding what was said in the application. Combs v. Ins. Co., 43 Mo. 148; Thomas v. Ins. Co., 20 Mo. App. 150; Franklin v. Ins. Co., 42 Mo. 456; Hayward v. Ins. Co., 52 Mo. 181; Breckenridge v. Ins. Co., 87 Mo. 62.

As was said, however, in Mensing v. Ins. Co., 36 Mo. App. 602, a case presenting a point similar, in some respects, to the one here, this case is not of that class, for the reason that in this case there is a limitation of the agent’s authority brought home to the insured by being found both in the application and policy. Here it is sought to bind the company by a statement made to the agent, which the policy and application declare shall not bind the company, unless it be incorporated in the application. The assured is warned in express language, to which attention was particularly called in plain type and terms in the application, that the agent had no authority to take notice of anything beyond what was written in the application, and that the application as written would govern the'company in issuing the policy and assuming the risk. This case belongs to the class of cases spoken of in 1 May on Insurance, sections 137, 137a, where the author says: “ Of course, if the insured stipulate in his application that the insurer shall not be bound by any act done or statement made to or by the agent not •contained in the application he cannot shelter himself under a plea of equitable estoppel.”

That language finds direct support in an opinion by Judge Scott, in the case of Loehner v. Ins. Co., 17 Mo. 247, a ease not to be distinguished from this, in .so far as the present point is concerned. We must hold it to be directly in plaintiff’s way of recovery. Among other things, it is there held, under a similar limitation to the one at bar, that plaintiff would not be at liberty to show that the agent was informed of the true condition of the title. To the same effect are the cases of Chase v. Ins. Co., 20 N. Y. 52, and Fitzmaurice v. Ins. Co., from the supreme court of Texas, not yet reported. We are, therefore, constrained to hold that the representation as to the title has avoided the policy, at least as to the real property.

The further question presents itself, viz., is the whole policy avoided so as to defeat the insurance therein on the plaintiff’s personal property which is separately stated and valued? In Crook v. Ins. Co., 38 Mo. App. 582, we held on a policy declaring that a false warranty as to title or incumbrance would render the policy void, that it would only avoid the policy as to the real property about which the false information was given, and permitted a recovery on that portion of the policy covering personal property. In that case, as is therein explained, we were compelled to draw a distinction between the cases of Loehner v. Ins. Co., 17 Mo. 247, and Koontz v. Ins. Co., 42 Mo. 126, and the case of American Ins. Co. v. Barnett, 73 Mo. 367. A distinction between statements declaring that a policy should be void, as in the first two cases where recovery was allowed for personal property, and that it should be void, and that no recovery should he had for any loss of the property or cmy pa/rt or portion thereof, as in the latter case, where it is said that a recovery for the personal property would not be allowed. "Whether this distinction is without any substantial difference need not be inquired by us. The only thing we can now seek to do is to ascertain which of these different rules the case at bar should be placed under. The present policy, on this head, reads: ‘1 This entire policy shall be void if the interest of the insured be other than unconditional and sole ownership, free from all liens whatever; or if the subject of the insurance be a building on ground not owned by the insured in fee simple.” This provision would seem to indicate that the representation as to the title to the real estate affected and influenced the whole contract of insurance, and that if such, representation was false “the entire” policy would be void.

We are greatly influenced to this conclusion by the yet unreported case in the St. Louis Court of Appeals, of Holloway v. Dwelling-House Ins. Co. [48 Mo. App. 1], where Judge Rombauer, speaking for the court determines that a similar provision rendered the policy void in toto.

The judgment then must be reversed.

All concur.