79 Mo. App. 362 | Mo. Ct. App. | 1899
This cause was considered on a former appeal (64 Mo. App. 438), where the issues are stated, and it was reversed and remanded for the submission to the jury of an issue ,as to the loss of a part of the property, which the evidence in that record failed to show was embraced within the terms of the policy. The cause was before us again (71 Mo. App. 658) upon an appeal from an order of the trial court in awarding a ne'íy trial for error in its ruling in compelling a nonsuit for defect of parties plaintiff We affirmed the award of a new trial and remanded the cause, with permission to plaintiff to strike out the name of an unnecessary party. This was done and another trial has taken place, resulting in a judgment for plaintiff, from which defendant appealed.
The action is for the alleged breach of a contract of insurance for $1,000 by the total loss of the property covered by
Hpon the issues thus joined the only questions for review are whether there is substantial evidence tending to prove the waivers set up in the reply, and whether the instructions of the court are correct ? For if these questions can be answered in the affirmative the verdict of the jury is conclusive of the rights of the parties. The policy in suit was issued in the state of Kansas on behalf of a nonresident corporation by an agent (C. H. Sawyer) to whom authority had been given to make contracts of insurance and countersign and issue policies thereon. The power of such an agent to waive forfeitures of the contract of insurance is not denied on the present appeal and is established under the laws of Kansas and elsewhere. McCullum v. Ins. Co., 67 Mo. App. loc. cit. 80, 81, and cases cited; Nickell v. Ins. Co., 144 Mo. 420; Ins. Co. v. Munger, 49 Kan. 178; Ins. Co. v. Gray, 43 Kan. 497; Ins. Co. v. Bank, 50 Kan. 449; Ins. Co. v. McLanthan, 11 Kan. 553. To establish the fact of such waivers plaintiff introduced evidence tending to show that the agent in question was fully apprised of the several forfeitures pleaded in the answer, and with such knowledge failed to cancel the policy of defendant and return the unearned premiums which would be due to plaintiff upon such cancellation, or to signify in any other way an intention to forfeit the contract of insurance. Appellant urges two objections to the sufficiency of this proof. First, that mere knowledge of the breach of the conditions of the policy and a failure to cancel it on that account affords no basis for an inference of waiver. Secondly, that if it did warrant such a
It is equally clear that the temporary closing down of the plant and the levy thereon by the sheriff were communicated to the agent in such manner as to charge defendant with notice. The letter of the agent, while writing about a policy in another company represented by him, shows that he had full knowledge that the plant was idle. It also appears that he was one of the appraisers of the property when levied upon. He was the general agent of the defendant when he wrote the above letter, and also when he assisted in appraising the insured property. The knowledge thus acquired could not have been absent from his mind while continuing the policy in suit by failing to declare a forfeiture. Hence it might be well imputed to defendant under the rule that the knowledge present to the mind of an agent, while so acting, which he is at liberty to communicate to his principal “whensoever, howsoever and wheresoever acquired, will be held knowledge of the principal.” Trundle v. Ins. Co., 54 Mo. App. loc cit 196; George v. Railway, 40 Mo. App. loc. cit. 446; Wade on Notice, sec. 688; Distilled Spirits, 11 Wallace, 356. But the evidence in the case goes farther. It distinctly appears from the admission of the agent thathewas fully informed as to the grounds on which the answer now claims a forfeiture, and that his only objection was that the information did not come to him in writing. This admission clearly warranted a finding of full oral notice to the agent in his capacity as such, of the defenses relied on, and coupled with the other facts in the record tending to show a waiver, justified a judgment for the amount of the policy.