Polk v. Western Assurance Company

• Decision Date: 06 November 1905
• Citation: 90 S.W. 397,114 Mo.App. 514
• Parties: MERRITT POLK, Respondent, v. WESTERN ASSURANCE COMPANY, Appellant
• Court: Kansas Court of Appeals

90 S.W. 397

114 Mo.App. 514

MERRITT POLK, Respondent, v. WESTERN ASSURANCE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

November 6, 1905

Appeal from Jasper Circuit Court.--Hon. J. D. Perkins, Judge.

AFFIRMED.

Judgment affirmed.

Reed Yates, Mastin & Howell for appellant.

(1) Even if this case should have gone to the jury at all (which we deny) instruction numbered 1 is palpably erroneous and must reverse the judgment, because it is unintelligible and could have had no other effect than to mislead the jury. Assurance Co. v. Norwood, 57 Kan. 610; Sowers v Ins. Co., 113 Ia. 551; Gray v. Ins. Co., 155 N.Y. 180; Hartford Co. v. Davenport, 37 Mich. 609; Bourgeois v. Ins. Co., 86 Wis. 606. (2) Instruction two is clearly error, because it does not limit the time when notice to the agent of an intention to take out additional insurance is a waiver of the policy condition in that regard. The reply pleads a waiver before and a waiver after the policy sued on was issued. Under the authorities cited supra, no waiver can arise from an expression of intention before the appellant's policy was issued. The jury must necessarily have been misled by this instruction. (3) A waiver of a contract right rests upon conditions existing at the time the waiver takes effect. You can not waive a right to cancel a policy for breach of a condition until you learn of the breach. The expression of an intention on the part of the insured to take only other insurance in the future is not notice of a breach of the clause prohibiting other insurance without written consent and imposes no duty on the insurer. Gray v. Ins. Co., 155 N.Y. 180; Hartford Co. v. Davenport, 37 Mich. 609; Sowers v. Ins. Co., 113 Ia. 551; Assurance Co. v. Norwood, 57 Kan. 610. (4) A waiver can only be justly claimed by the assured when the course of dealing by the company has been such as to induce his action, and the company should be apprised of the facts which create the forfeiture, and of those which will necessarily influence its judgment in consenting to waive it. Insurance Co. v. Mowry, 95 U.S. 332. (5) Waiver is but another name for estoppel. Grigsby v. Ins. Co., 40 Mo.App. 276; Hanna v. Ins. Co., 36 Mo.App. 538; Dantel v. Ins. Co., 65 Mo.App. l. c. 49-50; Porter v. Ins. Co., 62 Mo.App. 520; Norris v. Ins. Co., 65 Mo.App. l. c. 635.

John J. Wolfe for respondent.

(1) It cannot be denied that the evidence tended strongly to establish a waiver of the condition of the policy pleaded by defendant in its answer, the weight and sufficiency of which evidence is always a question of fact for the jury to determine. Gale v. Ins. Co., 33 Mo.App. 664; 2 Wood Fire Ins. page 943; Kerr v. Cusenbery, 60 Mo.App. 558; Summers v. Ins. Co., 45 Mo.App. 46; Hoffman v. Ins. Co., 56 Mo.App. 301; Porter v. Ins. Co., 62 Mo.App. 526. (2) As to all the essential points in this case, they are almost identical with points raised by defendant, in the case of Hayward v. Insurance Company, 52 Mo. 181. Ins. Co. v. Malloy, 50 Ill. 419; Ins. Co. v. Schettler, 38 Ill. 166; Horwitz v. Ins. Co., 40 Mo. 557; Franklin v. Ins. Co., 42 Mo. 456; Northrup v. Ins. Co., 47 Mo. 435; Hanna v. Ins. Co., 63 Mo.App. 93. (3) The doctrine laid down by the court in the case of Hanna v. Ins. Co., 36 Mo.App. 539, cannot be invoked by appellant in support of its position on the question of waiver of the condition in the policy. Norris v. Ins. Co., 65 Mo.App. 637. (4) The sufficiency or correctness of an instruction must be gathered from the instruction as a whole, and not by critically separating it and then attacking the detached sections in detail. Feary v. O'Neill, 149 Mo. 467; State v. Thomas, 138 Mo. 168; Knoche v. Whiteman, 86 Mo.App. 568; Baker v. Independence, 93 Mo.App. 165.

OPINION

JOHNSON, J.

Action upon a policy of fire insurance. Under the pleadings a single issue is presented; i. e., waiver by defendant of a condition contained in the policy prohibiting additional insurance except by consent of defendant indorsed upon the policy. Plaintiff had judgment and defendant appealed. It is admitted that after the delivery of the policy plaintiff obtained additional insurance upon the same property from another company, and that the consent of the defendant was not written on the policy.

Plaintiff introduced evidence to establish an oral waiver by the agent of the defendant. No point is made that the agent was without authority to bind his principal but the sufficiency of the evidence offered is assailed upon the ground that no notice that a new policy had been issued was given defendant and nothing more is shown than the disclosure by plaintiff to defendant's agent of an intention to procure additional insurance, from which it is argued that such expression of intention to violate the contract at some time in the future, imposed no duty upon the agent to withhold his consent and that the agent was not required to act except upon notice of an actual breach.

We cannot adopt the construction of the pertinent evidence that appears in the premise thus assumed. Defendant's agent was also the secretary of a building and loan association and in that capacity held the policy in suit as security for a loan plaintiff had from the association. Plaintiff testified as follows: "Q. You may state then after this policy had been written up, if you had any conversation with the agent of this company, Mr. Webster. A. Yes, sir; I went up there once or twice to get it, the policy, and he asked me what I did want with it and I told him the other company wanted to see it so I could take something out on it; that is what I told him and he said 'Let me have all of them' and I said 'No, I have arranged with the other companies to take some of it.' . . . Q. What did you say; what did you tell him? A. I told him that some company wanted to see the policy. He gave me the policy and asked me what I wanted and I said I want it so this other company could see it. Q. What did Webster say? A. He said, 'all right;' that is all he said. Q. Did you tell him at that time you intended to take other insurance? A. Yes, sir."

Plaintiff is an illiterate negro and expresses himself crudely, but his meaning if not entirely clear is aided by the testimony of his lawyer, who said that while plaintiff was in the agent's office asking for the policy, the agent telephoned the witness to ascertain what plaintiff wanted with it. Witness replied that another company was issuing an additional policy covering the same property and its agent "wanted to make his policy correspond to and cover the same amount that Mr. Webster's did, and in twenty minutes after that--probably ten or fifteen minutes--Mr. Polk (plaintiff) came to my office and delivered the policy." Plaintiff further testified that after the fire he immediately informed Webster of the loss, who asked him if he had notified the other company. Plaintiff replied that he had not but would do so at once, whereupon Webster assured him that defendant would settle within thirty days.

If this evidence is to be believed, and for the purpose of this discussion it must be accepted, the agent knew when he handed over the policy that plaintiff was in the very act of procuring other insurance on the property covered and was not expressing an undigested intention to ignore the terms of the policy at some indefinite future time. The question of the agent when first informed of the loss, "Have you notified the other company?" indicates quite conclusively that he had been resting under the belief that the new policy had been issued.

In the absence from the policy of stipulations to the contrary the procurement, by the...