B. B. Banks v. Clover Leaf Casualty Company, a Corp.

• Decision Date: 21 June 1921
• Citation: B. B. Banks v. Clover Leaf Casualty Company, a Corp., 233 S.W. 78, 207 Mo.App. 357 (Mo. App. 1921)
• Parties: B. B. BANKS, Respondent, v. CLOVER LEAF CASUALTY COMPANY, a Corporation, Appellant
• Court: Missouri Court of Appeals

233 S.W. 78

207 Mo.App. 357

B. B. BANKS, Respondent, v. CLOVER LEAF CASUALTY COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, St. Louis

June 21, 1921

Appeal from the Circuit Court of the City of St. Louis.--Hon. George H. Shields, Judge.

REVERSED.

Judgment reversed.

Thomas O. Stokes for appellant.

(1) An application to be insured is no more than a proposition to the insurance company for insurance and necessarily must be accepted before there can be a binding contract. Rhodus v. Kansas City Life Ins. Co., 156 Mo.App. 281. (2) A mere soliciting agent cannot make a contract of insurance whether oral or written, binding upon the company which he represents. Therefore appellant's soliciting agent who took respondent's application for the written policy sued upon could not have made an oral contract of insurance covering the period between the signing of the application and the date of the written policy, nor could he under any circumstances waive the insuring clause of the written policy. Therefore, the court erred in holding that appellant's soliciting agent could and did make a binding oral contract of insurance for the period between the signing of the application and the date of the written policy sued upon. Graham v. Ins. Co., 110 Mo.App. 95, 98, 99; Kring v. Ins. Co., 195 Mo.App. 133, 135, 136; Rhodus v. Kansas City Life Ins. Co., 156 Mo.App 281, 284, 285. (3) The court erred in holding that appellant was bound by the oral contract of insurance alleged in respondent's reply, since even if the soliciting agent who took the application had been authorized (which he was not) to make binding contracts of insurance, the oral contract of insurance alleged in respondent's reply would still not be binding, since no consideration for the same is either alleged or proved. Swift v. Ins. Co., 216 S.W. 935; Swift v. Ins. Co., 202 Mo.App. 419; Lebrecht v. New State Bank, 199 Mo.App. 642; Goller v. Oil & Supply Co., 179 Mo.App. 48. (4) The respondent must recover, if at all, upon the cause of action alleged in his petition and cannot piece out his petition by his reply. He alleged a written contract of insurance in his petition. He is bound by his allegation of this contract which shows on its face in clear and unequivocal language that he is not entitled to recover. Therefore, the court erred in overruling appellant's motion to strike out the parts of respondent's reply relating to the oral contract of insurance and further erred in refusing to sustain appellant's demurrers to the evidence at the close of respondent's case and at the close of the entire case. Quigley v. King, 182 Mo.App. 196; State ex rel. Bush v. Sturgis, 221 S.W. 91; Schwabe v. Moore, 187 Mo.App. 74; Davis v. Western Union Teleg. Co., 198 Mo.App. 692; George Gifford Co. v. Willman, 187 Mo.App. 29; Cockrell v. Williams, 195 Mo.App. 400; Lebrecht v. New State Bank, 199 Mo.App. 642; Goller v. Oil & Supply Co., 179 Mo.App. 48; Third Nat'l Bank of St. Louis v. St. Charles Savings Bank, 244 Mo. 554; Schnitzer v. Excelsior Powder Mfg. Co., 160 S.W. 282, 284; Brasel v. W. T. Letts Box & Cooperage Co., 220 S.W. 984; Sunderland v. Hackney Mfg. Co., 192 Mo.App. 287. (5) The court erred in overruling appellant's objections to the evidence offered by respondent in regard to the conversations which respondent claims to have had with appellant's soliciting agent prior to or at the time respondent signed the application for the policy in suit, in which respondent claims the agent agreed that respondent would be insured from within twenty-four hours after he signed the application, since all such conversations, irrespective of the authority of the agent, were merged; first, in the written application, and, second, in the written policy of insurance sued upon, there being no allegation of fraud, accident or mistake and no claim that the policy of insurance sued upon was not the policy applied for. Wright v. Great Eastern Casualty Co., 206 S.W. 428; Supreme Lodge K. of P. v. Dalzell, 223 S.W. 786; Goller v. Oil & Supply Co., 179 Mo.App. 48; General Accident & Life Ins. Co. v. Owen Bldg. Co., 195 Mo.App. 371; Calloway v. McKnight, 180 Mo.App. 621; Outcult Advertising Co. v. Barnes, 176 Mo.App. 307; Sunderland v. Hackney Mfg. Co., 192 Mo.App. 287; Farmers State Bank v. Sloop, 200 S.W. 304; Graham v. Ins. Co., 110 Mo.App. 95; Baker v. McMurry Contracting Co., 223 S.W. 45; Beheret v. Myers, 240 Mo. 58; Humana Co. v. Hughes, 213 S.W. 515, Rigler v. Reid, 186 Mo.App. 111; Gimbel Bros. v. Mitchell, 219 S.W. 676; Third National Bank of St. Louis v. St. Charles Savings Bank, 244 Mo. 554; Feren v. Epperson Investment Co., 196 S.W. 435; Harms v. Long, 213 S.W. 507; Duncan v. Spencer, 211 S.W. 698; Marshall-Hall Grain Co. v. P. H. Boyce Merc. Co., 211 S.W. 725; Hall v. K. C. Southern Ry. Co., 209 S.W. 582; Highland Investment Co. v. K. C. Computing Scales Co., 209 S.W. 895; Bank of Dexter v. Simmons, 204 S.W. 837; First National Bank v. Henry, 202 S.W. 281; Brimm v. Alexander, 185 Mo.App. 599; Patt v. Leavel, 161 Mo.App. 242. (6) The court erred in refusing to give appellant's instructions in the nature of demurrers to the evidence at the close of respondent's case and at the close of the entire case. Authorities under Points 4 and 5 (supra).

Hall & Dame for respondent.

(1) The provisions of an application for insurance where made for the benefit of the insurance company may be waived by the conduct of the insurance company. The provision of an application for insurance that the insurance is not to take effect until the policy is delivered to the applicant while in good health is waived if the insurance company collects the premium for the insurance and keeps it and attempts to make further collection of premiums, although the company never delivers the policy to the applicant. Rhodus v. Kansas City Life Ins., 156 Mo.App. 281; Pierce v. New York Life Ins. Co., 174 Mo.App. 383; Keyes v. Life Ins. Co., 161 S.W. 345; Lange v. New York Life Ins. Co., 254 Mo. 488; Jones v. Prudential Ins. Co., 173 Mo.App. 1; State ex rel. Equitable L. A. A. v. Robertson, 191 S.W. 989. (2) An agent of an insurance company authorized to solicit applications for insurance and to collect premiums and deliver policies can waive provisions of the application or the policy. Such agent may by express agreement or conduct waive a provision of the application that the insurance is not to take effect until the policy is delivered to the applicant while in good health. This is especially true where the insurance company by its conduct ratifies the action of the agent. Kring v. Ins. Co., 195 Mo.App. 133; Schuler v. Met. Ins. Co., 191 Mo.App. 52; Madsen v. Prudential Ins. Co., 185 S.W. 1168; Halsey v. American Ins. Co., 258 Mo. 659; Springfield Laundry Co. v. Ins. Co., 151 Mo. 90; Ormsby v. Ins. Co., 98 Mo.App. 371. (3) The premium paid by the plaintiff at the time of making the application and which the application stated paid the policy to February, 1917, was the consideration to defendant for the contract of insurance entered into with plaintiff. There was but one contract of insurance. Plaintiff was entitled to insurance for the full term which this payment covered. As the application, as well as the policy, stated that the premium was paid to February 1, 1917, and as plaintiff paid for a full month's insurance, his insurance would begin January 1, 1917. Halsey v. Am. Cent. Ins. Co., 258 Mo. 659. (4) Plaintiff's petition states his cause of action. Plaintiff's reply was merely avoidance of matters of defense set up in defendant's answer. Schuler v. Metropolitan Life Ins. Co., 191 Mo.App. 52. (5) The rule that verbal statements prior to or contemporaneous with the reducing of the contract to writing are merged into the writing is relaxed in the case of insurance contracts, to prevent miscarriage of justice. 16 L.R.A. (n. s.) 1165, Note; People's Ins. Co. v. Gayne, 79 Ark. 315. (6) Plaintiff is entitled to indemnity for the loss accrued after the inception of the contract of insurance, whether the accident from which the loss arose occurred before or after the inception of the contract. The words of the policy make this construction of the contract unavoidable. (8) When under the undisputed facts plaintiff was entitled to a verdict for the amount which the jury awarded, any errors of the trial court would not affect the merits or prejudice defendant's rights and would be harmless, and would not be grounds for reversal. Sections 1276, 1513, 1550, 1551, R. S. 1919.

BRUERE, C. Allen, P. J., Becker and Daues, JJ., concur.

OPINION

BRUERE, C.

This is an action on an accident policy issued by the appellant to the respondent. A trial by jury was had in the circuit court of the city of St. Louis, which resulted in a verdict in favor of the respondent. From a judgment on that verdict appellant appeals.

The petition alleged "that the defendant on or about the 31st day of December, 1916, in consideration of the payment of policy fee and premium of two dollars, paid by said B. B. Banks to defendant, and of a premium of two dollars to be paid on or before the first day of each month thereafter by said B. B. Banks, entered into a contract of insurance with the said B. B. Banks and thereupon issued its policy of insurance No. 116,072, whereby it insured said B. B. Banks as accident indemnity in the sum of sixty dollars per month, or at said rates for any proportionate part of a month," etc., reciting the indemnity provisions of the policy.

The petition further alleged that said policy of insurance was not in plaintiff's possession but was in the possession of the defendant, and that the plaintiff was entitled to the possession of the same; that plaintiff made his application for insurance to the defendant on the 31st day...