Beall v. North Missouri Farmers Mut. Ins. Co.

• Decision Date: 07 December 1936
• Docket Number: No. 18692.,18692.
• Parties: BEALL et al. v. NORTH MISSOURI FARMERS MUT. INS. CO.
• Court: Missouri Court of Appeals

99 S.W.2d 492

BEALL et al. v. NORTH MISSOURI FARMERS MUT. INS. CO.

No. 18692.

Kansas City Court of Appeals. Missouri.

December 7, 1936.

Error to Circuit Court, Sullivan County; Paul Van Osdol, Judge.

Action on a fire policy by W. Lee Beall and another against the North Missouri Farmers Mutual Insurance Company. To review a judgment for plaintiff, defendant brings error.

Affirmed.

See, also, 99 S.W.(2d) 585.

E. M. Jayne, of Kirksville, for plaintiff in error.

W. A. Lintner, of Milan, for defendants in error.

SHAIN, Presiding Judge.

In this action plaintiff seeks to recover for a loss by fire. The defendant is a farm mutual insurance company existing under and governed by article 15, chapter 37, § 6056 et seq., R.S.Mo.1929, as same was amended in 1934 (Mo.St.Ann. § 6056 et seq., p. 4604 et seq.).

Under the provision of the rules governing the defendant company, each insured while insured is considered a member of the company. In other words, each insured is also an insurer and the contract provides that the by-laws of the company are made a part of the contract of insurance.

Under the provisions of the laws of the defendant company, application for insurance is provided to be made in writing and said written application becomes a part of the contract.

In the present instance it stands admitted that plaintiff made written application and that the defendant issued to plaintiff an insurance contract insuring against loss by fire the dwelling and household goods and outbuildings of the plaintiff.

It stands admitted that the property involved herein was destroyed by fire and no question of due proof of loss is raised.

The contract of insurance in issue had a loss payable clause to W. H. Thomas, mortgagee, as his interest might appear.

Defendant in its answer to plaintiff's petition asks that the suit abate because Thomas is not made a party. The defendant pleads the provisions, terms, and conditions of the constitution and by-laws of the company.

In the written application for insurance the following question and answer appears: "No. 3 Stove Pipes—Do all stove pipes go into good brick or cement chimneys? Answer: Yes."

The written application had a provision as follows: "I warrant the answers to each of the foregoing questions to be true."

The written application involved had a list of questions on the back to be answered by agent before mailing same. These questions are shown as answered by D. V. Madris, agent. Question and answer No. 5 appears as follows: "Did you carefully examine stove pipes and chimneys? Yes."

The plaintiff testified that defendant's agent made out the written application and that plaintiff answered truly all questions asked but did not read before signing.

The defense imposed, predicated upon alleged breach of warranty as to the chimney, is as follows: "Further answering said petition, defendant states that it was provided by the said by-laws and was therefore a part of said policy and contract that defendant would not be liable for any loss caused by gross negligence or neglect and that the loss complained of in plaintiffs' petition was caused by the gross negligence and the neglect of plaintiffs in that they erected a stove in the smokehouse on the premises and attached the stovepipe to a metal flue jack which they knew to be likely to permit the building to take fire from said stove and in that they neglected to construct a good brick or cement chimney for said stovepipe."

Plaintiff interposes general denial by way of reply.

A jury was waived, trial was by court. The court made findings of fact as follows: "Whereupon the court at the request of plaintiffs, made and filed a written finding of facts and by the same the court did find that defendant issued its policy to plaintiff insuring the property described in plaintiffs' petition. That plaintiffs paid all premiums and assessments due thereunder. That said policy was issued in response to their written application, Plaintiffs' Exhibit `A', and that said application was prepared in the handwriting of D. V. Mardis, who acted as the agent of defendant in securing said application, and that said Mardis in the preparation of said application asked plaintiffs questions and that plaintiffs gave him true answers to all questions asked. That plaintiffs signed the application without reading it and relying upon Mardis to correctly prepare the same. That plaintiffs never saw the application after signing it until after the fire. That the property was destroyed by fire on the date set forth in the petition. That plaintiffs gave defendant notice of the loss and defendant's secretary McVey within a few days visited the scene of the loss and learned at that time that there were no brick or cement flues in the smokehouse and that the stovepipe used in said building entered a metal flue or jack and that after such visit defendant's secretary McVey furnished plaintiffs blanks for making out proof of loss. That plaintiffs were put to some trouble in the preparation of said proof and the completed proofs were filed within thirty days after the fire. That plaintiffs were not guilty of gross negligence in permitting the pipe from said stove to enter a metal flue or jack."

The court gave declarations of law to the following tenor and effect:

As to right of defendant to urge breach concerning brick or cement chimney and use of smokehouse for summer kitchen, the court declared the law to be that defendant, by reason of fact that it did not return or offer to return premiums or assessments, paid by plaintiffs, within a reasonable time after being possessed by knowledge, was not entitled to defend on account of any such breach.

Further the court declared that above defense was not effective, "because said defenses were waived by defendant furnishing plaintiffs blank proofs of loss which plaintiffs, at defendant's request, prepared at some trouble and time and...