50 Mo. 112 | Mo. | 1872
delivered the opinion of the court.
This was an action on a policy of insurance issued by the defendant to Edward P. Tesson, who originally brought the suit, and becoming bankrupt, it was afterwards prosecuted in the name of the plaintiff as assignee in bankruptcy. It was an insurance against fire on a distillery building and machinery. The description of the building embodied in the policy was : “ his three or four story distillery building and machinery in the same, not running, no fire in or about, situated entirely detached, on the bank of the Mackinaw river, in the town of Eorneyville, Woodford county, Illinois, valued at thirty-two thousand dollars.” The description in the application for insurance was substantially the same, with this addition, “ gable end is frame.”
The defense was that the policy was avoided by breach of warranty in this: that by the application and policy, Tesson warranted that the premises insured were built of the' materials stated in the policy and application, and that they were situated entirely detached, when in truth the warranty was false, in this: that the distillery building was not built of brick, but that the third story was built entirely of wood, and a portion of the distillery building, one story high, sixty feet long and thirty feet wide, was built entirely of wood; and that the boilers for the distillery were under a shed roof outside the wall of the distillery; and as a fourth defense, the same matter was set up as a fraudulent concealment and misrepresentation by the insured in not disclosing the entire description of the premises as they really existed.
The proof conduced to show that Tesson owned but one distillery and that was the one in question; that at the time the insurance was effected, Tesson, who was in the vicinity of the premises, acquired the distillery by foreclosure of mortgage, and immediately telegraphed to his agent in St. Louis to insure it; that the agent went to the office of defendant and made known his business, and the agent of defendant drew up the application, which
The defendant introduced several insurance agents, who testified to the effect that, in their opinion, the risk or hazard on the building, as proven to be, would be greater than on such as described in the application and policy. Some of them also testified that the rate of premium, as charged in the policy, was ample and sufficient for insurance on the buildings as they really existed or were shown to have been.
After the close of the case, the parties asked instructions presenting the issues, whether this distillery building was the identical sub^t insured in the policy, or whether there was a misrepresent^.. on of any material fact, or a breach of the warranty created by embodying the representations made in the policy. But the court refused all instructions asked, and gave an instruction to the effect that the plaintiff could not recover.
This case was before this court formerly, and is reported in 40 Mo. 36. It was then in the shape of a bill in equity to reform the policy on the alleged ground that there was a mistake made in describing the premises ; hut the proof, in the opinion of the court, failed to establish such mistake. Judge Holmes, in delivering the opinion of the court, said: “ The rule is, in cases
As the record now stands before this court, the ruling above quoted seems to me to be more favorable to the defendant than the facts of this case justify. It seems that neither of the agents, at the time the application was made, had any definite knowledge of the exact description of the building, or of the materials of which it was composed ; and the evidence also conduces to show that, as part of such description, maps were afterwards to be produced by the agent of Tesson, and that such maps were in fact furnished ; that underneath one of the maps it was written, “ the first and second stories arc of brick.” Now the natural inference would be that the rest of the building above the ground was of wood. This evidence also conduced to show that the whole matter was, as it were, in fieri, or left open for the delivering of the maps. Whether such maps were to be delivered, and were in fact delivered or shown to the agent of the defendant, were questions of fact to be determined by a jury. If the matter was left open, as indicated, till the maps were delivered or produced, then the material facts not disclosed'in the application and policy, as written out, were furnished, and the agent of the defendant might have returned the premium and withdrawn the policy. But no such offer appears in the evidence.
I am clearly of the opinion that the court erred in withdrawing the case from the jury by the instruction given on its own motion. It was in the nature of a demurrer to the evidence, predicated on
Judgment reversed and cause remanded.