Gold Issue Min. & Mill. Co. v. Pennsylvania Fire Ins. Co.

• Citation: 267 Mo. 524,184 S.W. 999
• Decision Date: 24 March 1916
• Docket Number: No. 17298.,17298.
• Court: United States State Supreme Court of Missouri
• Parties: GOLD ISSUE MIN. & MILL. CO. v. PENNSYLVANIA FIRE INS. CO. OF PHILADELPHIA.

184 S.W. 999

267 Mo. 524

GOLD ISSUE MIN. & MILL. CO. v. PENNSYLVANIA FIRE INS. CO. OF PHILADELPHIA.

No. 17298.

Supreme Court of Missouri.

March 24, 1916.

Rehearing Denied April 10, 1916.

In Banc. Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by the Gold Issue Mining & Milling Company against the Pennsylvania Fire Insurance Company of Philadelphia. Judgment for plaintiff, and defendant appeals. Affirmed.

This is a suit instituted June 6, 1911, in the circuit court of Audrain county, Mo., by the plaintiff against the defendant, to recover the sum of $2,500, alleged to be due the former under the terms of a policy of insurance dated October 5, 1909, insuring certain property in the state of Colorado against damage and loss by fire. A trial was had, which resulted in a judgment for the plaintiff, and the defendant, in proper time and in due form, appealed the cause to this court.

We will briefly state the pleadings. The petition was in due form, charging that the plaintiff was a corporation duly organized under the laws of Arizona. That at all the times therein stated the defendant was a foreign insurance company, organized under the laws of Pennsylvania, and was duly licensed under the laws of this state to carry on a general fire insurance business herein, and was at all of said times, carrying on said business herein. That the plaintiff, on October 5, 1909, was the absolute owner of the property insured, situated in the state of Colorado, and that upon that date the defendant issued the policy mentioned, insuring the same against loss or damage by fire for a period of one year, for a consideration of ____ dollars. That on August 13, 1910, said property was struck by lightning, and destroyed and damaged to the amount of $134,000; and that proofs of loss were duly given. The policy was a regular standard policy, containing the usual terms and conditions. At the September term, 1911, of said court the defendant filed in the cause a motion to quash the summons and the return of service thereof made by the sheriff of Cole county on the superintendent of insurance of this state, which was by the court overruled. Thereupon the cause was passed to await the decision of this court in the case of State ex rel. v. Barnett, 239 Mo. 193, 143 S. W. 501. That after that case had been decided, the defendant, after leave of court had been obtained, filed answer, which is substantially as follows: The answer alleges the service was had upon the superintendent of insurance; that the court acquired no jurisdiction over defendant because neither party was a resident of Missouri and the action accrued in Colorado, and therefore section 7042, R. S. 1909, did not apply; that said section is unconstitutional and void, because in violation of section 30, art. 2, of the Missouri Constitution, and section 1, Amend. 14, of the federal Constitution; also that section 7042 was enacted in 1885, Laws of Missouri 1885, p. 183, in violation of section 28 and of section 34, art. 4, of the Missouri Constitution, and therefore void, so that the service of process gave no jurisdiction over the defendant. That in violation of the terms of the policy the property had been permitted to remain idle more than 30 days without the written permission of the defendant. Also that, in violation thereof, said property had been incumbered by the execution of a mortgage thereon, to secure the sum of $25,000 without defendant's knowledge or consent. Further, that the item "gold in process," mentioned in the policy, was not destroyed. That contrary to the terms of the policy, the property insured was not in operation at the time of the fire, nor for more than six months prior thereto. That the property was mortgaged at the time of the issuance of the policy and at the time of the fire without the consent of the defendant, and that the plaintiff was guilty of fraud and false swearing in claiming in its proofs of loss that "gold in process" to the value of $9,000 was destroyed. That the plaintiff was not the sole and unconditional owner of the property insured, nor did it own the property in fee simple, because it had not been licensed to do business in Colorado under the provisions of sections 904 and 910, R. S. Colo. 1908, and therefore it did not have title to the property, pleading decisions of Colorado to this effect, and that the defendant had tendered to the plaintiff all the premiums with interest thereon.

The reply denied the unconstitutionality of section 7042; admitted that the building was not in operation as charged by defendant, but pleaded waiver of such condition of the policy; that the mortgage on the property was paid off before the insurance was taken out; denied making false statements regarding "gold in process"; denied any information sufficient to form a belief as to whether section 910, R. S. Colo. 1908, and cases cited by defendant, were ever in force or rendered by the court; alleged that it paid taxes upon the property prior to the fire; pleaded that the courts of Colorado had decided that after a foreign corporation has paid a license fee, it may sue in the courts of Colorado; and pleaded that the doctrine of waiver was the law of Colorado.

The policy in suit was dated and delivered, along with the other policies amounting to about $50,000, to a Mr. Doepke, president of the respondent company, on or about October 5, 1909, and covers the insured property for one year thereafter. The insured property was destroyed by fire on August 13, 1910, and this action was instituted in the circuit court of Audrain county on June 6, 1911, summons being served upon Frank Blake, superintendent of the insurance department of the state of Missouri, on June 7, 1911.

We will first state the undisputed facts of the case, and then briefly state what the evidence tended to show regarding those that were disputed, viz.: The plaintiff herein is a corporation duly organized under the laws of the state of Arizona. The defendant is a fire insurance corporation duly organized under the laws of the state of Pennsylvania, and at all times mentioned in this suit, and at the time this suit was commenced, was, and ever since had been, duly licensed as a foreign insurance company to do business in the state of Missouri. On October 5, 1909, the defendant duly made and delivered its policy and contract of insurance to plaintiff herein at Cripple Creek, Colo., where it had a general insurance agency, which was represented by Kilpatrick & Hanley. In that section of Colorado the insurance company had no other representative, and Kilpatrick & Hanley had authority to make contracts of insurance. At the time the insurance was effected plaintiff owned certain valuable mining property, and was engaged in the building of a large smelter for the purpose of smelting gold from its mines, which were located two or three miles out of Cripple Creek, Teller county, Colo. On October 5, 1909, for and in consideration of a premium of $74.12, defendant, through Kilpatrick & Hanley, its general agents at Cripple Creek, did issue its policy and contract of insurance to plaintiff, whereby it was insured against all loss or damage by fire for a period of one year from October 5, 1909, to October 5, 1910, to the smelter, buildings, machinery, etc., which went to make up the smelter, which are described in the policy and which were owned by plaintiff, and which was finished and ready for use the day it was destroyed by lightning. Lightning struck the buildings August 13, 1910, and they were all destroyed by fire resulting therefrom. The evidence shows that the insured buildings and property, which were totally destroyed by fire, were worth $134,000, and that the loss and damage occasioned thereby was about that sum. There was a large amount of other insurance upon the property besides that which was issued by appellant herein, amounting to about $50,000. The insurance premiums were not paid in cash when the policies were delivered, but a credit was given to plaintiff therefor by Kilpatrick & Hanley, and prior to the fire plaintiff paid $500 to Kilpatrick & Hanley on the premiums, which amounted to between $1,500 and $1,600. August 15, 1910, two days after the fire, Kilpatrick & Hanley sent a telegram from Cripple Creek, Colo., to J. F. W. Doepke, the president of respondent, and one who was in sole charge of respondent's business, and the only one with whom Kilpatrick & Hanley ever had any business, requesting that respondent send the balance of the premiums, which amounted to $1,124. The telegram is as follows:

                             "Cripple Creek, Aug. 15, 1910
                

"J. F. W. Doepke, Mercantile Building, St. Louis, Missouri — Mail draft for your protection eleven hundred and twenty-four dollars.

                                    "Kilpatrick & Hanley."
                

Immediately upon receipt of that telegram Deopke sent a draft to Kilpatrick & Hanley for said sum of $1,124, which made payment in full of all the premiums upon all the policies, including the policy of defendant herein, which Kilpatrick & Hanley had issued upon the property in question. At the time the insurance was effected, and at the time the fire occurred, the plaintiff had not received a license to do business in the state of Colorado from that state, although it had, for a long time past, owned the mining property in question, and had been engaged in the erection of the smelter and buildings which were insured and destroyed by fire, and had been regularly paying taxes to the state of Colorado upon the property in question. After the fire the plaintiff gave due notice of the fire to defendant, and made due proofs of loss through the Kilpatrick & Hanley agency, the agents of the defendant. The policy provided that the property should not be idle for more than 30 days without the written permission of defendant. The evidence for plaintiff tended to show: That at the time the policy was issued and delivered to plaintiff, its...