Jackson v. German Ins. Co.

Decision Date06 June 1887
Citation27 Mo.App. 62
PartiesANDREW JACKSON AND WIFE, Respondents, v. THE GERMAN INSURANCE COMPANY, Appellant.
CourtKansas Court of Appeals

APPEAL from Jasper Circuit Court, HON. M. G. MCGREGOR, Judge.

Affirmed.

Statement of case by the court.

This is an action to recover on a fire insurance policy. The evidence tends to show that the plaintiffs are husband and wife colored people, living in the city of Carthage. They were unlettered, and unfamiliar with the transaction of matters pertaining to insurance policies. They owned a small house and some furniture, situated in said town. The defendant had established a general agency for the state (it being a non-resident corporation), at the city of Carthage, in charge of one Calhoon as its agent, who had for an assistant, one Harrison. In September, 1884, this agent applied to the plaintiffs to take out a policy of insurance in his company on their said property. They told him they did not have the money, whereat he informed them that the amount of the premium would be only twenty dollars, and that they could have until the first day of December following in which to pay it.

Plaintiffs' evidence tended to show that this agent further said to the husband that he could pay the amount of the premium in work to be done from time to time for the agent, as it suited him between that and the next spring. Thereupon, the plaintiff husband went to the agent's office, and signed, with his mark, such papers as the agent drew up for him. The plaintiff testified that none of the papers were read to him, but he understood one was a note for the amount of the premium, and the other was some paper connected with the procuring of the policy; that the agent told him the policy would be made out for him in a few days; and that, as he had a safe in his office, where he kept policies for others, he would keep the plaintiff's policy for him. The plaintiffs never saw the policy, and were not made acquainted with its provisions. On the fifteenth day of November, 1884, Calhoon mailed to plaintiffs the following notice:

" Office of Farm and Dwelling Department of the German Insurance Company.

Carthage Mo., November 15, 1884.

Elvira and Andrew Jackson, Carthage, Mo.

Your note number 1806, given for insurance in the German Insurance Company, is in my hands for collection, and will become due the first day of December, 1884. You will please remit the amount to me, at or before maturity, in the inclosed envelope, as instructed herein, and on receipt of the same, your note will be returned to you duly receipted. You are hereby authorized to remit by draft, post-office order, express, or registered letter.

Amount $20.00
Interest 00.00
Total $20.00

Do not fail to be prompt in sending the amount when due, as you cannot recover, in case of loss, after note comes due, until same is paid.

Respectfully,

W. W. CALHOON,

State Agent.

P. S. Please return this notice with money."

Upon its receipt, the plaintiff, Andrew, testified that he went to see Mr. Calhoon, and reminded him of his promise in respect of the manner and time of making payment of this premium; and that, thereupon, Calhoon said about the same to him as when he applied for the policy; that he told Calhoon in this conversation that he said he (plaintiff) could have until spring to work it out, and Calhoon said that is all right; that, after this, he did saw wood for Mr. Harrison, the assistant, amounting to $3.75, which sum was to be credited on the policy; that, about January 1, he sawed wood for Harrison, amounting to the sum of five dollars, which was to be credited on the note, also; but that, greatly needing the money to buy something to eat, he asked Harrison to let him have the money, and that he would do other work thereafter in payment of the note, and that Harrison agreed to this. Harrison admitted in his testimony this occurrence, but further testified that he advised plaintiff that the policy was not binding unless the premium was paid. The house burned in February, and when plaintiff applied to the agent for his policy, he was told by him that he had sent the policy and note on to the company to be cancelled, as the premium had not been paid.

After the fire a few days, the plaintiff did some work for Calhoon, which he offered to be credited on the note, and proposed to pay the amount due, but Calhoon refused.

The agent admitted the doing of work by the plaintiff, but claimed that it was done in November, just prior to the maturity of the note, and the amount was credited thereon. They did not produce the note at the trial, but claimed, and offered evidence to show, that the company had mailed the same to the address of plaintiffs, in Carthage. Plaintiffs testified that they never received the note, though they received mail regularly through the postoffice. The defendant's clerk, who testified to so mailing the note, stated that he saw no indorsement of any payment on the note when he mailed it.

Calhoon and Harrison contradicted, in the main, the testimony of plaintiffs as to the conversation respecting the payment of the note, and claimed that they advised them of the importance of making payment, in order to preserve their policy. The policy contained the stipulation, or condition, to the effect that if the premium note was not paid at maturity, the policy would not be binding.

Defendant's evidence, also, showed that they had and exercised the right of waiving such forfeitures, but by indorsement on the policy when made. The agent, also, testified that he extended the time of such payments, but by indorsement on the policy. The policy, also, contained the usual provision respecting waivers being in writing, indorsed on the policy, etc. At the close of plaintiffs' evidence, the defendant offered an instruction, in the nature of a demurrer to the evidence, which the court refused. On behalf of plaintiffs, the court gave the following instruction:

" 1. If the jury believe, from the evidence, that, at the time said policy was issued, and subsequent thereto, W. W. Calhoon was agent of defendant insurance company, having general authority to solicit insurance, collect premiums, issue policies, collect premium notes and extend the same, and generally attend to the business of the company, and that Frank Harrison was his assistant in transacting such business, and that such agents had control of the collection of the note given by plaintiffs, and that, subsequent to the time said policy was issued and said note given, said agents, or either of them, gave plaintiffs to understand, and induced them to believe, that defendant company would not require them to pay said note when due, but that they could pay, in work or installments, before or after same became due, and that the conditions of said policy as to forfeiture for non-payment would not be enforced, but that their policy would remain good, valid, and binding, whether they paid when due or not, then defendant is estopped from defeating recovery herein on account of such non-payment or forfeiture, and such acts and sayings of said agent or agents operate as a waiver of such conditions of said policy as to forfeit for non-payment."

On the part of the defendant, the court gave the following instructions:

" The court instructs the jury that any declarations made before, and when the insurance was effected, does not bind the parties, and such evidence is not to be considered by the jury. When the note, application, and policy of insurance was signed, the whole became a contract in writing, binding on the parties, and, in the absence of fraud, the only contract between the parties, and must be enforced according to its terms and conditions, unless the conditions have been waived by the defendant or its agents authorized thereto."
" The court instructs the jury that the burden of proof is on the plaintiffs, to prove, by a greater weight or preponderance of evidence, an extension of time of payment, after the note given for premium was made, and to prove the waiver, by the defendant, of the conditions of the policy by a preponderance of the evidence, and, unless the plaintiffs have proved, by a preponderance of the evidence, that defendant has so extended the time of payment, and waived the conditions of the policy, the plaintiff cannot recover, and you should find for the defendant."

The appellant, also, asked the court to submit special issues for the finding of the jury, which, with the answers made thereto, are as follows:

" 1. Was there any waiver, by the defendant, of any of the conditions of the policy? Answer. Yes."
" 2. If so, by whom was it made, and how? Ans. By defendant agreeing to extend the time of payments of note, and agreeing to accept part payment of note after the same became due."
" 3. When and where was such waiver made, if there was any? Ans. Some time in January, 1885, in Carthage, Mo."

After the cause was argued before the jury by counsel, the court withdrew the first instruction given the jury, and submitted, in lieu thereof, the following:

" If the jury believe, from the evidence, that, at the time said policy was issued, and subsequent thereto, W. W. Calhoon was state agent of the defendant insurance company, having general authority to solicit insurance, collect premium notes, and was in the habit of extending time of payment of notes, with the knowledge or consent of defendant, and generally attend to business of the company, and that Frank Harrison was his assistant in transacting such business, and that such agents had control of the collection of the note given by the plaintiffs, and, with the knowledge of defendant, were in the habit of extending notes, and that, subsequent to the time said
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