Ormsby v. Laclede Farmers' Mutual Fire And Lightning Insurance Company

• Citation: 72 S.W. 139,98 Mo.App. 371
• Parties: R. J. ORMSBY, Respondent, v. LACLEDE FARMERS' MUTUAL FIRE AND LIGHTNING INSURANCE COMPANY, Appellant
• Decision Date: 16 February 1903
• Court: Court of Appeals of Kansas

72 S.W. 139

98 Mo.App. 371

R. J. ORMSBY, Respondent, v. LACLEDE FARMERS' MUTUAL FIRE AND LIGHTNING INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 16, 1903

Appeal from Linn Circuit Court.--Hon. John P. Butler, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Harry K. West for appellant.

(1) The judgment in this case is wrong and should be reversed without remanding for the reason that all the evidence on both sides shows that the plaintiff is not entitled to recover. (2) The defendant is a farmers' mutual fire and lightning insurance company incorporated under article 10 of chapter 119, Revised Statutes 1899. Being a corporation so organized and existing, it is exempt from the provisions of chapter 119, applicable to general insurance companies. This exemption is in express words in section 8079. (3) The court erred in overruling the defendant's motion to strike out a part of the defendant's reply. (4) The court erred in giving plaintiff's instructions 2, 3 and 4. The plaintiff's instructions number 2 relates solely to the defense founded on the plaintiff's misrepresentation as to the incumbrance on the insured property. It wholly ignores the other defenses set up in the answer. Bank v Murdock, 62 Mo. 70; Link v. Weslermon, 80 Mo.App. 592; Bank v. Metcalf, 29 Mo.App. 384-395.

C. C Bigger for respondent.

(1) Mutual insurance companies are subject to the same general principles as to waiver and estoppel by the knowledge and conduct of the agents and officers, as applied to ordinary insurance companies. Williams v. Ins. Co., 73 Mo.App. 607; Cagle v. Ins. Co., 78 Mo.App. 431; Rickey v. Ins. Co., 79 Mo.App. 485. (2) If the application for insurance was signed by the plaintiff in blank, and if at that time or prior thereto, he had informed the secretary of the defendant of the incumbrance on the property upon which the policy was issued and that defendant's secretary thereafter filled up the application and in doing so, failed to correctly set forth the facts therein as he had been by the plaintiff informed and as he knew them to be; then such knowledge on the part of the secretary was the defendant's knowledge, and it can not, after a loss has occurred, be heard to disprove the truth of its own statements, as contained in the application. Shell v. Ins. Co., 60 Mo.App. 644; Cagle v. Ins Co., 78 Mo.App. 431; Rickley v. Ins. Co., 79 Mo.App. 485; Montgomery v. Ins. Co. 80 Mo.App. 500; Rissler v. Ins. Co., 150 Mo. 366. (3) The answer charged the contract for a sale of the premises to be made March 1, 1902, as a breach of the conditions of the policy. Plaintiff by his reply admitted the contract but pleaded as a waiver of said alleged breach, that he had on the same day notified the defendant's secretary of the contract of sale and that he was informed that it did not affect the policy of insurance and that the defendant would be liable for any loss under the policy until the deed of conveyance was made and that plaintiff relied on such representations of the defendant's secretary. This constituted a waiver of said alleged breach. Laundry Co. v. Ins. Co., 151 Mo. 90; Hayward v. Ins. Co., 52 Mo. 181; Schmidt v. Ins. Co., 2 Mo.App. 339; Franklin v. Ins. Co., 42 Mo. 456; Combs v. Ins. Co., 43 Mo. 148; Williams v. Ins. Co., 73 Mo.App. 606. (4) The instructions given on behalf of plaintiff correctly state the law, and when read together, as should be done, they fairly present to the consideration of the jury all material issues in the case raised by the pleadings and evidence. Meade v. Railroad, 68 Mo. 92; O'Connell v. Railroad, 106 Mo. 482; Owens v. Railroad, 95 Mo. 169; Hughes v. Railroad, 127 Mo. 447; Bank v. Hatch, 98 Mo. 376; Schaaf v. Fries, 77 Mo.App. 346.

OPINION

BROADDUS, J.

--This is a suit on a fire insurance policy. The property insured was a dwelling house situated on the plaintiff's farm. The defendant is a farmers' mutual insurance company incorporated under article 10 (ch. 119), Revised Statutes 1899. The petition is in the usual form. The answer, after admitting defendant's corporate existence and interposing a general denial except as to matters not therein afterwards admitted to be true, sets up the following specific defenses: That by the terms of the policy itself a written application of plaintiff for insurance was made a part thereof, as well as the by-laws of the defendant's organization; that the plaintiff in his said application falsely and fraudulently warranted that said property insured was free and clear of incumbrances, when in fact it was incumbered by a valid deed of trust for $ 1,000; that the plaintiff in his said application also fraudulently and falsely warranted and represented that he had never suffered loss by fire when in fact he had suffered such loss to the amount of $ 500; and that after he had entered into said contract he had made a valid contract for the sale of said property to one J. I. Hamilton. It further pleads as a defense that plaintiff by his proof of loss furnished to the defendant falsely and fraudulently represented to the defendant that he was the sole and unconditional owner in fee of the insured property, and that the same was free from incumbrances. By all of which defendant claims the policy became void.

The plaintiff in reply admits making the application but pleads that it was prepared by one H. E. Maybee, defendant's secretary, who wrote all the questions and answers therein, and that he (plaintiff) signed it without reading or knowing its contents; he admits that the land was incumbered by a deed of trust for $ 1,000, but claims that said Maybee was informed of that fact when the application was made; he also admits that after obtaining the policy of insurance he entered into a contract to sell the insured property to one Hamilton, but alleges that immediately after making said contract of sale he informed said Maybee of the fact; that said Maybee thereupon told him the sale would make no difference and that the policy would remain in force until he delivered his deed for the property to said Hamilton. The reply then sets up that after his loss, one Cady, who was also insured by defendant, sustained a loss by fire for which plaintiff was assessed $ 1.25 to pay his proportionate share of said Cady's loss, which he paid. And that at the time of said assessment and payment the defendant was aware of all the said breaches of the policy set up in its answer.

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