Wooldridge v. German Insurance, 69 Mo. App. 413

Wooldridge v. German Insurance

69 Mo. App. 413 | Mo. Ct. App. | 1897

Bland, P. J.

*416Proof of loss prima facic proof. Application: title: evidence: presumption: estoppel. *415An examination of the record in this case, and the disposition we shall make of this appeal, makes it unnecessary to set out the pleadings at any length. The petition was on a policy of fire insurance, dated December 19, 1894, issued to the plaintiffs *416by defendant company, insuring plaintiffs’ dwelling house and contents against loss by fire. The house and contents were alleged to have been burned April 10, 1895, and the loss to have been ■ a total one. Among other stipulations in the policy precedent to a right of recovery thereon, plaintiffs agreed to give immediate notice, in case of loss, and within thirty days after such loss, to furnish defendant company proofs of loss. The answer stated five separate and distinct defenses, based upon the stipulation in the policy and application for insurance. One of these defenses was that plaintiffs had failed to furnish any proofs of loss. To meet this requirement of the policy the plaintiffs took the deposition of one Chas.. E. Ellmore, at Mammoth Springs, in the state of Arkansas. A motion to suppress this deposition is in the transcript, but nowhere appears in the bill of exceptions, for which reason neither the motion nor the ruling of the court thereon, can be considered or received here. The deposition with the exhibits attached and made a part of it, furnish prima facie proof that the plaintiff had given timely notice of the loss, and made formal proofs thereof within the time, and in the manner required by the policy. The application was signed by both Sarah E. Wooldridge and her husband, Jesse. The title to the land was in .Sarah alone. The application for insurance contained this memorandum: “If applicant is a married woman, her husband must also sign application and note with her.” The signature of Sarah Wooldridge appears above that of her husband to the application. This fact indicated to the company that she, not her husband, was the owner of the land. Jesse Wooldridge, under the circumstances, must be presumed to have signed the application at the written request of the company, and it should be estopped *417from taking advantage of that which it procured to be done. Jesse having been named in the policy as one of the assured, was a necessary party to the suit, although he had no beneficial interest in the subject-matter. There was no error in the exclusion of the evidence of Jesse Wooldridge, Jr. He had no paper title and his evidence did not tend to disprove the title of Sarah Wooldridge.

Defective flue evidence: estoppel. The evidence tended to prove that a flue in one part of the insured building was not in the condition represented and warranted in the application. There was also evidence that Bass, the soliciting agent of the company, inspected the premises at the time he took the application, and knew the true condition of this flue. There was no notice in the application of any restriction of the authority of the agent to waive any of the terms and conditions of the policy to be issued on- the application. Under such circumstances the company would be estopped from claiming a forfeiture of the policy on account of the defective condition of this flue, and the estoppel is not affected by the fact that the policy subsequently issued called the attention of the assured to the fact that the soliciting agent had no authority to waive any of the terms and conditions of the policy. Combs v. Ins. Co., 43 Mo. 148; Parson v. Fire Ins. Co., 132 Mo. loc. cit. 590; Mining & Smelting Co. v. Amer. Fire Ins. Co., 62 Mo. App. 297; Beach on Ins., sec. 374.

Instruction. Instruction number 3, given at the instance of plaintiffs, 'is very broad in its terms on the question of waiver, but we think that it was so qualified by instruction number 7, given at the instance of defendant, as not to mislead the jury to the prejudice of the defendant. The instructions taken as a whole presented the case very favorably to the de*418fendant, on all the defenses made by the answer, and we perceive no substantial error on any given for the plaintiff, when the instructions are considered as a whole.

Loss: proof of value of personal property. It is assigned as error that there was a lack of proof of the value of the personal property consumed by the fire. Mrs. Wooldridge was the only witness who testified as to its value. She was unable to call to memory all of the articles or their value that were burned, but she con-

stantly referred to the formal proofs of loss as containing a correct list and the true value of the articles lost by the fire. These proofs were before the court and jury, and the defendant, under the circumstances, had the opportunity and right to cross-examine her on these values, as shown by the proofs of loss, if it had so desired. We are not able to say there was a lack of proof on this point. Perceiving no reversible error in the record prejudicial to the defendant, the judgment is affirmed.

All concur.