Colonius v. Hibernia Fire Ins. Co.

• Decision Date: 14 November 1876
• Citation: 3 Mo.App. 56
• Parties: JOHN COLONIUS, Respondent, v. THE HIBERNIA FIRE INSURANCE COMPANY, Appellant.
• Court: Missouri Court of Appeals

3 Mo.App. 56

JOHN COLONIUS, Respondent,

v.THE HIBERNIA FIRE INSURANCE COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 14, 1876.

An adjustment of a loss between the assured and an officer of the insurer does not create an estoppel against the defense, in an action on the policy, that the conditions of the policy had been forfeited so as to discharge the insurer from liability.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

Fisher & Rowell and W. P. Homer, for appellant, cited: Harrison v. City Fire Ins. Co., 9 Allen, 231; Keith v. Quincy Fire Ins. Co., 10 Allen, 228; American Ins. Co. v. Padfield, C. L. N., Jan. 22, 1876, p. 138; Marion v. Great Republic Ins. Co., 35 Mo. 149; May on Ins. 618, sec. 505, p. 261, sec. 507; Security Ins. Co. v. Foy, 22 Mich. 473; Jewett v. Home Ins. Co., 29 Iowa, 562, 565; Pickard v. Sears, 6 Ad. & E. 469; Firley v. Lycoming Mutual Ins. Co., 30 Pa. St. (6 Casey) 311; Pettergill v. Kicks, 9 Gray, 169; Westlake v. St. Lawrence Mutual Fire Ins. Co., 14 Barb. 217; Murphy v. People's Equitable Mutual Fire Ins. Co., 7 Allen, 239; Noonan v. Hartford Fire Ins. Co., 21 Mo. 81.

Wm. Kreiter, for respondent

LEWIS, J., delivered the opinion of the court.

The defendant issued to plaintiff a policy, insuring an engine and machinery against loss by fire to the amount of $1,500. Among the conditions of insurance made part of the policy was one in the following words: “If the premises are, at the time of insuring or during the life of the policy, vacant, unoccupied, or not in use, and remain thus for over ten days, whether by removal of the owner or occupant, or for any cause, without this company's consent is indorsed thereon, this insurance shall be void and of no effect.” Another condition required that, in case of a loss, affidavits should be made by the assured concerning certain matters, with a stipulation annexed that, “if there appear any fraud or false swearing, the insured shall forfeit all claims under this policy.” The defendant's answer set up a specific violation of each of these conditions, and the plaintiff replied, putting the same in issue. The cause being tried before the court sitting as a jury, judgment was rendered for the plaintiff, from which the defendant appealed.

The petition alleged that, after the destruction by fire of the insured property, the loss was adjusted by and between plaintiff and defendant, and $1,325 was thus agreed upon between them as the proper sum to be paid for plaintiff's indemnification. At the trial the plaintiff gave testimony tending to prove such adjustment, and that defendant's agent gave him a draft on the company for the amount, which was never paid. Defendant offering to prove by the plaintiff himself that the premises had been vacated in violation of the terms of the policy, objection was made by the plaintiff that this was a case of an adjusted policy, and, therefore, the testimony was inadmissible. The objection was sustained, and the testimony excluded. A question was then asked by defendants, which appeared to be preliminary to an inquiry into the truth or falsity of plaintiff's affidavits in proof of his loss. This was objected to on similar grounds, and the objection was sustained.

The question thus presented by the record is whether, in case of a loss under a policy of insurance, and an adjustment and agreement between the parties upon the amount of money which will cover the loss sustained, the insurer will be thereupon precluded from showing, in defense against a suit on the policy, that the conditions of the latter had been previously...