Rufus v. Nat'l Ins. Co.

• Decision Date: 31 January 1874
• Citation: 55 Mo. 172
• Parties: RUFUS, LOU, and JOSEPH M. PELKINGTON, Plaintiff in Error, v. THE NATIONAL INSURANCE CO., Defendant in Error.
• Court: Missouri Supreme Court

55 Mo. 172

RUFUS, LOU, and JOSEPH M. PELKINGTON, Plaintiff in Error,

v.THE NATIONAL INSURANCE CO., Defendant in Error.

Supreme Court of Missouri.

January Term, 1874.

Error to Pettis Circuit Court.

Phillips & Vest, for Plaintiffs in Error.

I. In Hayward vs. Nat. Ins. Co. Han. (52 Mo., 181,) the case of Hutchins vs. The Western Ins. Co., 21 Mo., 97, has been overruled, and the equitable rule has been established, that the condition in the policy may be waived by the company, and that the waiver may be made as well by acts as by positive declarations, and that the Company may be estopped from setting up the want of indorsement by its course of dealing under the circumstances. In Geib vs. The International Ins. Co., 1 Dill. Ct. Ct. R., 449, Judge Dillon says, “As the local agent might, by contract indorsed on the policy, have waived the condition as to the amount to be insured, he may, by acts and by course of dealing, do that which amounts to such a waiver; may dispense with this condition and with the requirement that such waiver or dispensation shall be in writing indorsed on the policy.” This rule has been since approved by the Supreme Court of the United States in the case of “The Distilled Spirits,” 11 Wall., 356; see also Viele vs. Germania Insurance Co., 26 Iowa, 9; Peoria M. & F. M. Ins. Co. vs. Hall, 12 Mich., 202.

Crandell & Sinnett, for Defendant in Error.

I. The subsequent insurance wrought a forfeiture of the policy sued on, and oral waiver is not sufficient to revive it, unless some new consideration on part of assured supervenes. There is no pretense of new consideration in this cause. (1 Phil. Ins., §§ 1040, 2155; Cockrell vs. Cin. Ins. Co., 16 Ohio, 149; Turrell vs. Thomas, 5 Bingh., 188.) The forfeiture of a claim under a policy, incurred by deviation, may be waived in writing, but not by a merely verbal consent to waive it after it has occurred. (3 Johns. Cas., 142; 1 Sumn. C. C., 232.)

The doctrine in some late cases that there may be a paro waiver of prior or subsequent insurance, if communicated at time of, or before, making the policy, is based upon the fact, that the premium is accepted with full knowledge of the facts and that the contract is made with reference to the facts stated. In the case at bar the subsequent insurance was made in violation of the contract of insurance then in existence, and knowledge thereof by parol was given after the contract was forfeited with no new consideration between the parties, or indorsement on the policy. Here the doctrine of oral waiver can have no equitable or legal application. Defendant had the perfect right to refuse written consent to the subsequent insurance. The forfeiture of the policy is the result of plaintiffs' act in violating the contract. The wrong, if any, is imputable to plaintiffs' own unwarranted violation of the policy, and not to defendant's neglect or refusal to consent thereto. (21 Mo., 97; 4 How., 222; Forbes vs. The Aganaw Ins. Co., 9 Cush. 470; Barrett vs. Ins. Co., 7 Cush., 178; Carpenter vs. Ins. Co., 16 Pet., 512.)

The case of Hayward vs. Nat. Ins. Co., 52 Mo., 181, modifies to some extent the doctrine held in Hutchinson vs. Western Ins. Co., 21 Mo., 97; but the acts and circumstances connected with the transaction in that case are so different from the facts set up in the case at bar, that it would require an unwarrantable stretch of law to apply the principle of estoppel therein enumerated to this case. In the Hayward case the facts clearly show that it was well understood between the insured and the insurance agent, at the time of the issuing the policy of $3000 sued on, that $6000 was to be kept on the insured property. In the case at bar, the policy sued on was issued without any understanding or notice whatever, that plaintiffs intended to take out any further insurance on the property. There is no averment in the pleadings that at any time plaintiffs presented the policy sued on to the agent for the proper indorsement, or that they gave any consideration for such indorsement or waiver; or that defendant, by its agent or otherwise, gave actual consent to such additional insurance; but they rely wholly upon the fact, that, at the time they notified the agent of the subsequent insurance, he did not object and notify them that their policy was annulled.

There is no estoppel in this case. Bigelow on Estoppel, page 480, says: 1st. “There must have been a representation or a concealment of material facts: 2nd. The representations must have been made with a knowledge of the facts: 3rd. The party to whom it was made must have been ignorant of the truth of the matter: 4th. It must have been made with the intention that the other party should act upon it: 5th. The other party must have been induced to act upon it.”

Here plaintiffs with full knowledge of the conditions of the policy, and, without notice to defendant, take out another policy in another Company. After their second policy had been taken, and the contract between plaintiffs and defendant had been forfeited by the acts of plaintiffs, they notify defendant's agent of their acts, and because he makes no reply, they claim that defendant is estopped from setting up their violation of the contract to defeat this action. Why should the defendant object? It is too late for objections; the injury is done, the policy vitiated, and it is entirely optional with the defendant, whether the policy shall be restored or not, and its failure to make the proper indorsement on it to give it new life is the strongest evidence that it was considered void from that time by defendant, and it seems to have been treated as such. Now we ask, where is the representation? Where the concealment? Where is the intention shown to do a wrong? What has defendant...