Archer v. Merchants' & Manufacturers' Ins. Co.

• Decision Date: 31 March 1869
• Citation: Archer v. Merchants' & Manufacturers' Ins. Co., 43 Mo. 434 (Mo. 1869)
• Parties: JAMES ARCHER, Respondent, v. THE MERCHANTS' AND MANUFACTURERS' INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

43 Mo. 434

JAMES ARCHER, Respondent,

v.THE MERCHANTS' AND MANUFACTURERS' INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

Hill & Jewett, for appellant.

I. The court should have allowed the defendant to file its amended answer. Plaintiff is the assignee of Cook, the insured, after the fire, and the assignment subjects him to all the liabilities of Cook. The face of the policy fully notified Archer what Cook's liabilities were. Cook was a member of the company by the terms of the policy, and by the assignment could not give Archer any better position than he had himself. It would seem to be a strange doctrine that a member of a mutual insurance company can, after he has suffered a loss, assign his policy and force his company to resort to an action on his note, even though he is insolvent, and thus escape the responsibility he assumed as a condition of the insurance. We know of no case in which an assignee with notice can stand in any better position than his assignor; and the question would seem only to be whether Cook, if plaintiff, could legallyrefuse to have deducted from the sum due on account of his loss an assessment made on his note, a part of which very assessment is made necessary to pay his own loss, as well as other losses by the company of which he is a member. Can he force the company to pay all his loss and then to sue him on his note to get a part of it back? Such a proceeding would seem to violate a well-known maxim in law as to multiplicity of suits, as well as common sense, and the court below did not give us the light of its reasons for the ruling. The very spirit of the mutual company is reciprocal liability--each to bear his share of the burden and receive his share of the benefit. The assessment by the company is not in the nature of a debt accrued after the assignment of the policy to Archer; but the liability to the assessment is a part of the contract, and whoever takes the contract takes it cum onere. (Ang. on Fire and Life Ins. § 222, p. 253; Wamscot Machine Co. v. Partridge & Co., 5 Fos., N. H., 369, and cases there cited.) The permission to file was not refused asa matter of practice as being out of time, and was not objected to by the counsel for plaintiff on that ground, but wholly on the ground that the offset could not be made against the assignee.

II. The next point is, that, under the section of the conditions referred to in the statement, we had a right to submit the question to the jury, or the court sitting as a jury, whether the fire was not caused by the explosion of benzine or the use of burning fluid, and that the testimony was sufficient to entitle us to go to a jury on the fact.

III. The third point is, that the words “a wagon-maker's shop and materials for manufacturing wagons” were not notice to the defendant that a paint-shop, with materials for mixing paint, and a part of which materials was benzine--a highly inflammable and explosive substance--was insured under those words. The proof is that benzine has only been used for a few years in mixing paint, and there is no evidence that defendant had any knowledge of the use of that article in mixing paint, or that paint-shops were usually kept in wagon-makers' shops. A paint-shop is as well known as a distinct place of business from a wagon-maker's shop as it is from a tailor's shop; and it is a very forced construction of the words “material for manufacturing wagons” to say that they are notice to the defendant that they are meant to include a paint-shop with benzine in it.

By the conditions of insurance, section 3, painters' stock is named as extra hazardous, and by section 4 of same conditions it is required that the application shall state if the goods insured are extra hazardous, and the omission to make known any fact material to the risk renders the policy void. The application does not name painters' stock as a part of the materials used, and there is no evidence that the defendant knew that the custom for six or seven years had been to keep or use benzine as material to mix paint. The proof of such a custom for five or six years was not sufficient to imply notice to those not in the business of painting or wagon-making.

If the practice of using benzine in mixing paint is to be called a custom, then the proof was inadmissible, as it was not proved to have existed immemorially. If it is a usage of trade, then the proof must be that it is established, known, certain, uniform, reasonable, and not contrary to law. But in order to make this usage of trade binding, it must be proved to be known to the person who is to be bound by it. (2 Greenl. Ev. § 251.) In this case there is no evidence that any such usage of trade was known to the defendant as that a paint-shop with benzine and other inflammable material in it was a part of a wagonmaker's shop and materials for manufacturing wagons. Without such usage of trade there can be no pretense that the policy covered a paint-shop and materials, of which benzine was a part; and the proof of that usage of trade does not comply with the law in the very material point that it does not prove knowledge of that usage on the part of the defendant. We therefore say that the fact that benzine was kept in a paint-shop, and that paint-shop in the wagon-maker's shop, was a fact material to the risk, and was concealed from the defendant by Cook. If the evidence of custom or usage of trade was admissible as far as it went, it did not go far enough, as it failed of proving notice to defendant.

Glover & Shepley, for respondent.

I. The allowing of the filing of an amended pleading is a matter discretionary with the court before whom the case was, and the court will not interfere with the exercise of this power unless it clearly appear that the discretion was not properly exercised. On the contrary, it is evident: 1, That even if the assignee was liable, the prosecuting of this set-off, just upon entering on the trial, after the defendant had already placed the cause at issue for more than a year, and after three months had elapsed after the alleged assessment, was such a change as would not be allowed without very good reasons shown why it had not been filed before. 2. The allowing this amended answer to be filed would clearly have operated as a surprise upon the plaintiff. If it were good at all against the assignee, he could defend by showing, either, ( a) That it was an assessment for losses arising before Cook became a member. ( b) That prior assessments to cover these losses had not been collected. ( c) That this assessment was to cover losses happening after the loss occurred under the policy sued on. 3. The matter pleaded as a set-off could not be set up against the assignee, the plaintiff in this action. The assessment having been made after the original answer was put in, and more than a year after both the fire and the assignment, is not a claim that can be set up against the plaintiff. No liability arises except upon the assessment. (33 Barb. 610; 19 N. Y. 32.) Now, the policy (article 12 of conditions) provides that losses shall be payable in ninety days after ascertainment and proof. At the time of the commencement of this suit the loss had, by the terms of the policy, become payable. There was then no obligation on the part of Cook even to the defendant which could be recovered. Cook had assigned his interest and right to recover on the 13th of November previous, and by the terms of the note at the time of the commencement of the suit the defendant could not have recovered against Cook, as the assessment was not made for about nine months afterward.

II. The proof was that benzine had been used for five or six years before the fire as one of the materials...