Combs v. Hannibal Sav. & Ins. Co.

• Decision Date: 31 January 1869
• Citation: 43 Mo. 148
• Parties: H. L. & E. W. COMBS, Respondents, v. HANNIBAL SAVINGS AND INSURANCE COMPANY, Appellants.
• Court: Missouri Supreme Court

43 Mo. 148

H. L. & E. W. COMBS, Respondents,

v.HANNIBAL SAVINGS AND INSURANCE COMPANY, Appellants.

Supreme Court of Missouri.

January Term, 1869.

Appeal from Fourth District Court.

Williams, Jones, Brown, and D. A. McMillan, for appellants.

I. The contract of insurance in this case was conditional. It provides, in express terms, that “if the interest of the assured be any other than the entire, absolute, unconditional, and sole ownership of the property, both at law and in equity, it must be so represented to the company in the written portion of this policy, and such interest correctly described, otherwise the company shall not be liable by virtue of this policy.” The policy being conditional, and the condition broken, the policy is void. If plaintiffs are induced to make such a contract by fraud of defendants, they may repudiate it or have their remedy against the party by whom they are defrauded. But they cannot sue and recover upon a different contract from the one actually made. (Tebbetts v. The Hamilton Mut. Ins. Co., 3 Allen, 569; Brown v. The Cattaraugus Co. Mut. Ins. Co., 18 N. Y. 390.)

II. Parol proof is inadmissible to prove representations made at the time of making application. (2 Denio, 81; 4 Hill, 340-4; 2 Pars. Cont. 422; Ins. Digest, 299; 2 Caines, 155; 13 Mass. 96; 30 N. Y. 162; 38 Mo. 92; Cow. & H., notes 1463-70, 1397; 23 Barb. 656.)

III. In writing the application, Rust was the agent of plaintiffs, and they are bound by his acts. (6 Cush. 42; 9 Cush. 470-3; 3 Grey, 583; 1 Phil. Ins. § 867; 4 R. I. 141; 25 Barb. 497; Sto. Cont.)

Prewett, Hall & Reed, for respondents.

I. Plaintiffs had a right to show that the agent of the defendants made out the application for plaintiffs, and falsely inserted therein, without their knowledge, statements which they had not made, and fraudulently induced them to sign an application different from the one they intended to make.

IV. The defendants are bound by the fraudulent acts of their agent. (Howes v. Columbia Co. Ins. Co., 18 Ohio 120; Boggs & Luther v. American Ins. Co., 30 Mo. 70; Loehner et al. v. Home Mut. Ins. Co., 17 Mo. 256; Harvard Fire Ins. Co. v. Brown, 23 Penn. 56; Hough v. City Fire Ins. Co., 29 Conn. 19; Gaylord et al. v. Lamar Fire Ins. Co., 40 Mo. 16; Protection Ins. Co. v. Harmer, 2 Ohio St. 467; Rowley v. Empire Ins. Co., 36 N. Y. 550; Horwitz v. Equitable Ins. Co., 40 Mo. 557; Franklin v. Atlantic Fire Ins. Co., 42 Mo. 456; Plumb v. Cattaraugus Ins. Co., 18 N. Y. 392; Masters v. Madison County Ins. Co., 11 Barb. 630.)

CURRIER, Judge, delivered the opinion of the court.

This action is based on a fire policy for $1,000, issued by the defendants September 24, 1866, insuring to the plaintiffs a frame building and some personal property contained therein. A recovery is resisted on the ground of false representations and warranties, in this: that the plaintiffs, in their application, represented their title to the insured property to be an unencumbered fee simple, whereas it was in fact only an encumbered equitable title. The application, which was read in evidence on the trial, contained the following questions and answers, namely:

“Question 10. What is the title? Answer. Fee simple.

Question 11. Is your property encumbered, by what and to what amount? Answer. No.”

In reply to this matter set up in the answer, the plaintiffs alleged in substance that, on the occasion of making the application, they fully apprised Rust, the defendants' soliciting agent, of the true state of the title, and that he thereupon filled up the application in his own language, assuring the plaintiffs that it was all right; and that they, believing it to be so, signed the application without being aware of its peculiar phraseology, or that the words “fee simple” and “no encumbrance” were in it.

On the trial testimony was given, under objections made to its competency by the defendants, tending to prove these averments, and tending to show that Rust, as the defendants' agent, solicited the insurance; and that plaintiffs, before the application was drawn up, submitted to his inspection their title paper, being a bond for a deed, on which a balance of $100 was then unpaid. Under instructions appropriate to the evidence, the jury returned a verdict for the plaintiffs.

Rust was the agent of the defendants in soliciting insurance business, but there was no evidence as to the precise scope of his authority, beyond what already appears. Assuming that he acted as the agent of the defendants in filling up the application, and did not therein exceed his authority, it follows that his acts were the acts of the defendants, and that they are bound by what he did as though done by themselves, and that his knowledge is theirs. Having, then, taken the risk under the circumstances stated, knowing the facts, does it lie with them to come in now, after a loss has occurred, and avoid the policy by disproving the truth of their own statements as contained in the application? We think not. In our view, the doctrine of estoppel in pais is applicable to the case, and ought to be applied as in the case of Plumb v. Cattaraugus Mutual Insurance Company, 18 N. Y. 392, where it is held that the “insurer is estopped from showing a breach of warranty by proof of errors material to the risk in the survey and application,” when the survey and application were made by the agent of the insurer, with a full knowledge of the facts. The doctrine of this case is fully sustained by a subsequent decision of the same court in Rowley v. Empire...