Andrews v. Bulldog Auto Fire Ins. Ass'n

• Decision Date: 05 April 1926
• Docket Number: No. 15592.,15592.
• Citation: 291 S.W. 508
• Parties: ANDREWS v. BULLDOG AUTO FIRE INS. ASS'N OF CHICAGO.
• Court: Missouri Court of Appeals

291 S.W. 508

ANDREWS v. BULLDOG AUTO FIRE INS. ASS'N OF CHICAGO.

No. 15592.

Kansas City Court of Appeals. Missouri.

April 5, 1926.

Rehearing Denied May 3, 1926.

Certiorari Denied February 24, 1927.

Appeal from Circuit Court, Jackson County; Edward E. Porterfield, Judge.

"Not to be Officially Published."

Action by George H. Andrews against the Bulldog Auto Fire Insurance Association of Chicago. Judgment for plaintiff, and defendant appeals. Affirmed, on condition of remittitur.

Walter W. Calvin, of Kansas City (Kimbrell & Wofford, of Kansas City, of counsel), for appellant.

Musser & Kilian, of Kansas City, for respondent.

BLAND, J.

This is an action on a fire and theft insurance policy written by the defendant upon an automobile owned by plaintiff. There was a verdict and judgment for plaintiff in the sum of $2,032.50, together with an assessment of a penalty of $100 for vexatious refusal to pay the loss. This is the second appeal of the case. See Andrews v. Bulldog Auto Fire Ins. Ass'n (Mo. App.) 258 S. W. 714, where the material facts concerning this controversy are stated.

It is insisted that defendant's demurrer to the evidence should have been sustained and that the court erred in giving plaintiff's instruction No. 3. This instruction told the jury that, although the statements contained in the application were warranted by plaintiff to be true, if they found that at the time the application was made "* * * plaintiff was asked questions by the agent Robinson, and the plaintiff made true answers to such questions, if you so believe, and the agent Robinson wrote the answers in said application, if you so believe, and that the plaintiff when asked to sign the said application, if you so believe, did sign the same without reading the application, if you so believe, and that at the time of so signing the application the plaintiff had no knowledge of its true contents or that his answers had not been correctly written therein, if you so believe, then you are instructed that the warranties mentioned in the application were not the warranties of the plaintiff, and the defendant is not justified in refusing payment for loss under said policy of insurance on the ground of a breach of the warranties contained therein."

It is insisted that the statements made in the application, although they were written by Robinson, were those of plaintiff, in view of the fact that he signed the application and that he cannot now be heard to say that he did not read the application. In this connection defendant points out that the statements made in the application were warranted to be true both in the application and in the policy. The statements in the application that are in controversy are admittedly false. This same question was before the court in the former appeal, and the contention was ruled against the defendant. As the ruling was undoubtedly correct, it should stand. In addition to the cases mentioned in the opinion in the former appeal, the following cases may be cited to show that plaintiff is not bound by the statements made in the application. Scott v. Insurance Co., 69 Mo. App. 337; Modern Woodmen v. Angle, 127 Mo. App. 94, 104 S. W. 297; Ormsby v. Insurance Co., 105 Mo. App. 143, 79 S. W. 733; Combs v. Insurance Co., 43 Mo. 148, 97 Am. Dec. 383; Shell v. Insurance Co., 60 Mo. App. 644; Bushnell v. Insurance Co., 110 Mo. App. 223, 85 S. W. 103; Shotliff v. Modern Woodmen, 100 Mo. App. 138, 73 S. W. 326; Floyd v. Modern Woodmen, 166 Mo. App. 166, 148 S. W. 178.

It is elementary in the law of contracts that when one can read he must read, and if he signs a document, in the absence of imposition, fraud, or deceit, he will not be heard to say that he did not know what was in the paper he signed.:t is also true that parol testimony is inadmissible to vary, explain, or modify the terms of a written contract, complete and unambiguous on its face. Spelman v. Delano, 187 Mo. App. 119, 172 S. W. 1163; White v. Elwell, 189 Mo. App. 36, 176 S. W. 486; Crim v. Crim, 162 Mo. 544, 63 S. W. 489, 54 L. H. A. 502, 85 Am. St. Rep. 521; Groff v. Longsdon (Mo. Sup.) 239 S. W. 1087; Day v. Insurance Co., 216 Mo. App. 279, 264 S. W. 467; Johnston v. Insurance Co., 93 Mo. App. 580. However, the law in reference to the matter involved In the case at bar is properly stated in 32 C. J. pp. 1333, 1334;

"Where the facts have been truthfully stated to its agent but by his fraud, negligence, or mistake are misstated in the application, the company cannot, according to the generally accepted rule, after accepting the premium and issuing the policy, set up such misstatements in the application in avoidance of its liability, where the agent is acting within his real or apparent authority, and there is no fraud or collusion upon the part of insured. Among the reasons given for this rule are: That the company assumed to draft the papers so as to meet its own views as to their requirements; that the agent is the agent of the company; that his knowledge will be imputed to the company; that the statements in the application are in fact his statements; that the company is estopped from controverting their truth; and that the evidence does not constitute an attempt to vary a written contract by parol, although there is some authority to the contrary based on the theory that in making the application, the solicitor is acting as agent of the applicant or that the introduction of evidence to show the fact would violate the rule excluding parol evidence to alter a written contract."

A reading of the cases cited In this and the former opinion in this case will show that each of the reasons assigned by Corpus Juris has been given in this state for the holding made on the point in controversy. An examination of those cases will disclose that it is established in this state that the holding does not violate the parol evidence rule and that the agent taking the application is the agent of the insurer and not of the applicant, unless, perhaps, the agent is a mere broker. Robinson, defendant's agent in this case, of course, did not occupy that relationship. The above rule applies although the statements are specifically made warranties. Rissler v. Insurance Co., 150 Mo. 366, 51 S. W. 755; Shell v. Insurance Co., supra; Thomas v. Insurance Co., 20 Mo. App. 150; 32 C. J.p. 1334.

Defendant attempts to differentiate some of the cases in this state on the question now under consideration by making a distinction where there is really no difference. For instance, it attempts to distinguish this case from cases where the application for the insurance was prepared by defendant's agent in the absence of plaintiff. Here the application was prepared in plaintiff's presence. What difference that could make in the principles of law applicable to the situation we are unable to see. Even If the application is made in the insured's presence and the agent of the insurer inserts other facts than those given to him by the insured, the application is just as much that of the agent as though it were made by the agent outside of the presence of the insured or upon Information which he thinks correct, secured by the agent from other sources than the insured. If, as here, the agent inserts false facts in the application, known to him to be false because different from those given to him by the insured, there is more reason, if there is any distinction, to say that the agent should be held to have intended It as his own application.

From what we have said there was no error in the overruling of the demurrer to the evidence and in the...