133 Mo. App. 584 | Mo. Ct. App. | 1908
This is a suit on a policy of insurance issued by defendant on the 22nd day of June, 1905, whereby defendant insured the plaintiff against loss by fire on the following property; “Dwelling and addition ... in the sum of thirteen hundred dollars, and upon the contents of said dwelling in the sum of twelve hundred dollars.” On February 10, 1906, a structure, claimed to be an addition to said building, was destroyed by fire with the goods and contents therein, and the main building was damaged. The defense is, that plaintiff made application on property described as follows, towit; “Frame dwelling, 16x38 feet, one and one-half stories, age fourteen years, frame addition, 18x38, .one story, age fourteen years; one porch.” And that by the constitution and by-laws of the organization of which plaintiff is a member, the said application became a part of the contract of insurance. The plaintiff
The testimony tends to show that there was a structure close to the main building that was used in connection with it and in which were kept family stores and other things used for family purposes, but not directly attached to such main building. The application, signed by plaintiff, was introduced by defendant, in which the description of the property coincides with the statement in defendant’s answer. Plaintiff’s evidence was that he signed it in blank, while that of defendant was that the description was inserted upon information given by plaintiff. Under the by-laws of the company, such applications are made a part of the contract of insurance. There is also a by-law that provides that, “Insurance on property encumbered by mortgage, deed of trust, or mechanic’s lien, shall be payable, in case of loss, to the person or persons holding such encumbrances unless the owner give security that he will use the money to rebuild or repair loss or damages. It appeared that a third party had a mortgage on the property.
The court permitted plaintiff to recover for the destruction of the detached structure and for damage to the main building, but would not permit him to recover for the contents of the so-claimed addition. The defendant appealed and the plaintiff appealed from the action of the court in refusing him judgment for the value of the contents of the detached building. The only questions raised by the defendant’s answer are, that it did not insure such addition to the main building as described in the written policy; and that the building destroyed was not an addition to the main building. To these two questions we will confine our
There is a substantial variance in the description in the policy and that contained in the application, and yet under the by-laws in question both are made a part and parcel of the same contract. They were, however, executed at different times. The policy was the last executed and was delivered by the company to plaintiff, who accepted it as written. It was prepared by defendant’s secretary who had previously filled out the blank application. As it described plaintiff’s property he intended to insure, we think it should control. The recitations in an application cannot be invoked for the purpose of contradicting the terms of the contract as contained in the policy.
Was the detached building, although used as a part of the main dwelling, an addition within the description of the policy? The question is answered in the affirmative by numerous decisions of which the following are a part: Insurance Co. v. Martin (Miss.), 16 S. R. 417; Robinson v. Insurance Co. (Me.), 32 Atl. 996; Pettit v. Insurance Co., 41 Minn. 299.
The contention of the plaintiff that the court committed error in not allowing him a judgment for the contents destroyed in the addition, we think is not sustained. The policy insures “dwelling and addition” and “contents of dwelling.” If it had been the intention to insure the contents of the addition, the policy should have read, “dwelling, addition and contents,” etc. There is no doubt about the meaning.
The cause is affirmed on both appeals.
