Travis v. Continental Insurance

32 Mo. App. 198 | Mo. Ct. App. | 1888

Hall, J.

— I. In support of the action of the circuit court, in sustaining a demurrer to the evidence, the defendant’s counsel suggest that under his own testimony the plaintiff did- not have an insurable interest in the property covered by the policy. They contend that the property was, nnder our statute, the property of the plaintiff’s wife, in which he had no interest whatever. Their position is that, since the property was obtained by the wife in exchange, for her real estate, it became her separate property under section 3296, Revised Statutes, and that the verbal gift of it to him by her under that statute was null and void, and that the property remained hers.

It may be conceded that the property was the wife’s separate property and that the verbal gift of it by his wife to the plaintiff was invalid, but it does not follow that the plaintiff had not an insurable interest in it. The plaintiff had possession of the property claiming it as his own by virtue of a transfer of it from his wife ; if this claim was made in good faith by plaintiff he had an insurable interest in the property. The fact “that the title of the insured to the property is defective, or invalid even, will not deprive him of his insurable interest therein, if he is in possession and use thereof under a bona-fide claim of title, legal or equitable.” Wood on Fire Ins. 503. Again, if the verbal gift by the wife was invalid, the husband held the property as the wife’s trustee ; and a trustee having no personal interest in the property may procure an insurance on it. Wood on Fire Ins. 529; Ins. Co. v. Chase, 5 Wall. 513.

The defendant’s counsel also contend that the court properly sustained the demurrer to the evidence for the reason that the plaintiff did not introduce in evidence the entire policy of insurance, but only introduced the ninth and eleventh clauses of the policy.

It will be observed from the statement of the facts that the defendant in its answer admitted the issuance and assignment of the policy as alleged in the petition, and so far as concerns the terms of the policy set up only the defense that the plaintiff had not furnished the proofs of loss or the certificate of a notary as required by those terms. Under such circumstances we think that it was sufficient for the plaintiff to read in evidence those clauses of the policy bearing on the defense thus set up by the defendant. If the remainder of the policy was material to the defense the defendant should have offered it. The presumption to be made from the failure of the defendant to make such offer is that the remainder of the policy was immaterial to its defense.

The defendant’s counsel make another point which we desire to dispose of before considering the principal question in this case. That point is that, because the plaintiff alleges, and relies in his petition for a recovery on, a compliance with the terms of the policy in furnishing the defendant with a certificate of a notary public, he could not at the trial prove, and recover on, a waiver by the defendant of such certificate.

This point must be decided against the defendant on the authority of St. Louis Ins. Co. v. Kyle, 11 Mo. 291. In the case at bar the plaintiff did furnish the defendant with a certificate of a notary public, and the plaintiff introduced the certificate in proof, of the allegation of the petition that such a certificate as was required by the policy had been furnished to the defendant; upon the defendant objecting to the form of the certificate in certain respects, the plaintiff offered evidence to show that the defendant had waived the objections then made by it. Such evidence was admissible to prove that in fact the plaintiff had complied with the policy alleged in the petition — strictly speaking the evidence of performance and not of waiver. Id.; Russell & Co. v. Ins. Co., 55 Mo. 593; Okey v. Ins. Co., 29 Mo. App. 105.

The real question in this case is, was there any evidence on which the court could have properly submitted the question of waiver to the jury %

The principal objections made to the notary’s certificate are: That the policy requires the certificate to state that the notary has examined the circumstances attending the fire, while the certificate states that he examined under oath witnesses having knowledge as to the circumstances of the loss; and that the policy requires the certificate to state that the notary ‘ ‘ verily believes that the assured has, without fraud, sustained, loss,” etc., while the certificate states that he “verily believes, from the evidence, that the assured has, without fraud,” etc.

. On April 30, 1885, the notary, who made the certificate, wrote a letter to defendant’s agent at Kansas City calling his attention to the peculiar phraseology of the certificate, explaining that in it he refrained from venturing his individual opinion on the subject and only gave an opinion'produced by the evidence, and suggesting that it would be prudent for the defendant to investigate further before payment, as the evidence before him was solely from parties in interest. This letter explaining the notary’s certificate plainly furnishes ground and reason for the objections made by the defendant, at the trial and here, to the certificate. But on April 29, 1885, the defendant’s agent, to whom the notary’s letter was addressed, wrote to the plaintiff concerning the proofs of loss sent by him, and to which the certificate was attached, making four objections in all, three to the proofs of loss and one to the certificate.

The objection to the certificate was as follows: “The notary public does not give his certificate in these papers to the amount of loss as you claim to have sustained, in other words, there is a difference between the amount of loss you claim to have sustained and the amount of loss certified to by the notary public, which do not harmonize.” The agent suggested that the plaintiff complete the papers in the light of the objections made ; the words were: ‘ ‘ Please complete these papers or not as you choose, but in any event the papers will not be accepted as a particular account of loss until completed. ” Had the matter stopped there; had nothing more occurred between the defendant and the plaintiff' in relation to the certificate, it is too plain for argument that the defendant w*ould have been confined to the single objection made by its agent to the certificate. Having pointed out a particular objection to the certificate, the defendant would have been presumed to have-accepted it subject only to that objection.

The objection made was without merit. The policy required the notary public to certify £ £ that he verily believes that the assured has, without fraud, sustained loss on the property to the amount which such * * * notary public shall certify,” not to the amoicnt the assured may claim. On May 26, 1885, the plaintiff, by his attorney, sent to the defendant’s agent, to whom the original proofs of loss were sent, a “supplementary particular account of loss.” On June 2, 1835, the agent wrote to plaintiff’s attorney, in which he stated that the supplementary account of loss substantially complied with the requirements of his previous letter, as to the first, second and third particular objections, and added : “In the fourth particular objection, as shown in our letter of 29th, you have failed to comply.” Had the letter stopped here it would have been simply a renewal or repetition of the former objection. But it did not stop here and the question is, from what the letter continuing said, was the court right in saying that the original objection was not only renewed, but that the objections made at the trial to the certificate were presented ? The letter continuing said: “The. policy provides that the assured give the certificate of the next notary public, magistrate or commissioner of deeds, to the place of the fire, that he has examined the cause and circumstances of the fire and that he verily believes that the assured has, without fraud or evil practice, sustained a loss to the amount the assured may state; this certificate has never been given, we demanded it in our letter of April 29, and we again demand it now; and shall insist upon the literal compliance with this condition of the, policy of' insurance.”

The general rule is: “If the magistrate’s certificate is defective in form, or in substance, the insurer must seasonably object thereto, specifically designating the ground of objection, or the defects will be treated as waived.” Wood on Fire Ins. p. 714, sec. 416, and cases, cited. The only specific objection contained in the letter of the agent of June 2 is the original objection, and in accordance with the general rule all other objections must be deemed waived. But, if the agent, in his last letter, by referring in general terms to the requirements of the policy as to the substance of the certificate, and by stating that he should insist upon the literal compliance with this condition of the policy, can be deemed to have intended to make a general objection to the certificate, we do not think, without regard to the rule ignoring general objections, that the general objection should be noticed in this case, under the facts. The agent had made a specific objection in a former letter; he refers the plaintiff to that objection ; he then, in general terms, but incorrectly, so states the terms of the policy as to require what was formerly required by him ; he then states that he demands the certificate required by the policy, adding, “ we demanded it in our letter of Aijril 29, and we again demand it now.” Bearing in mind that the agent, long before writing this last letter, had received the notary’s letter and that on it the objections now urged were based, if they were really referred to at all in the last letter, would it be fair to permit a general objection contained in the concluding clause of the letter, in these, words, “ and shall insist upon the literal compliance with this condition of the policy-of insurance,” to refer to anything but the original particular objection already three times referred to ? We think not. If the agent intended to make the objections suggested by the notary, he should have specified them; not having done so, they must be deemed waived.

Judgment reversed and cause remanded.

All concur.