Bealmer v. Hartford Fire Insurance Company of Hartford
| Citation | 220 S.W. 954,281 Mo. 495 |
| Parties | GEORGE BEALMER and WILLIAM L. BEALMER, Partners, Doing Business as BEALMER & SONS, v. HARTFORD FIRE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Appellant |
| Decision Date | 13 March 1920 |
| Court | United States State Supreme Court of Missouri |
Appeal from Macon Circuit Court. -- Hon. Vernon L. Drain, Judge.
Transferred to Kansas City Court of Appeals.
Barger & Hicks and Barker & Jones, for appellant; Bates, Hicks & Folonie, of counsel.
(1) Sec. 7047, R. S. 1909, denies foreign insurance companies equal protection of the law. This section is violative of Section 1 of the Fourteenth Amendment to the Federal Constitution, and is unconstitutional and void. Said section conflicts with Sub-section 26, Section 53, Article 4 Constitution of Missouri, and with Article 2 of Section 30 of Constitution of Missouri. Southern Railway Co. v Greene, 216 U.S. 400. (2) Defendant having been authorized to do business in Missouri was, after such authorization, entitled to be treated the same as a domestic insurance company and entitled to equal protection of the law. The imposition of conditions preceding entry into the State have no bearing on the question, as the point goes to the equal rights of the defendant after being admitted. Gulf, Colorado & Santa Fe Railway v. Ellis, 165 U.S 150. (3) To effectuate an assignment of a policy of fire insurance so as to create liability from the insuring company to the assignee, there must be (a) a valid assignment by the owner of the policy to the assignee and (b) the consent of the insurance company to the assignment. If the minds of the seller of the property and the purchaser have not met as to assigning the insurance or the expressed consent of the insurance company has not been secured, then in either event it is ineffectual. 2 Joyce on Insurance (2 Ed.), sec. 1120. (4) The court should have directed a verdict as a matter of law, because no valid assignment of the policy was proven, nor any consent of the insurance company requested or given respecting same. Unexecuted intention to assign a policy does not amount to an actual assignment. Meadows' Guardian v. Meadows' Administrator, 13 Ky. Law Report, 495. Fire insurance policies cannot be assigned without consent of the insurer. 4 Joyce on Insurance (2 Ed.), p. 2304. Assignment and consent thereto is a tripartite contract and must in every sense be a novation to have any legal effect. Swaine v. Teutonia Fire Insurance Co., 222 Mass. 108. (5) Insurance agents, even though designated "general agents," are not substitutes for their employer with authority to do anything whatsoever but must act within the apparent scope of their authority. Continental Insurance Company v. Schulman, 205 S.W. 315.
Dan R. Hughes and John R. Hughes for respondents.
(1) The defendant's agent countersigned the policies and followed the usual course of business he had pursued for years with the consent of the company. This made their agent a general agent and his agreements and knowledge was binding upon the company. The company is estopped from disputing the authority of its agent. Sheets v. Ins. Co., 153 Mo.App. 620; Rogers v. Fire Ins. Co., 157 Mo.App. 671; Deland & Sons v. Ins. Co., 68 Mo.App. 282; Bealmer et al. v. Hartford Fire Ins. Co., 193 S.W. 847; Woolfolk v. Home Ins. Co., 202 S.W. 627; Prichard v. Conn. Fire Ins. Co., 203 S.W. 223. (2) The extent and character of the agent's authority is determined by the powers granted and the general course of dealing, and not the name by which the agent is designated by the company. Sheets v. Ins. Co., 153 Mo.App. 620; Nickell v. Ins. Co., 144 Mo. 420; Bealmer v. Hartford Fire Ins. Co., 193 S.W. 847. (3) The general agent has authority to bind the company and his agreements or knowledge will be imputed to the company. A local agent having the power to make contracts of insurance has authority to make assignments of policies. Nickell v. Ins. Co., 144 Mo. 420; Sheets v. Ins. Co., 153 Mo.App. 620; Bealmer v. Hartford Fire Ins. Co., 193 S.W. 847; Woolfolk v. Home Ins. Co., 202 S.W. 627; Prichard v. Conn. Fire Ins. Co., 203 S.W. 223. (4) When the agent knows the exact conditions and the premium is accepted or not returned, the company will be held liable for the loss. Gray v. Ins. Co., 155 N.Y. 184; Rogers v. Ins. Co., 157 Mo.App. 671; Manning v. Ins. Co., 176 Mo.App. 678; Rosecrans v. Ins. Co., 66 Mo.App. 352; Bealmer v. Hartford Fire Ins. Co., 193 S.W. 847; Woolfolk v. Home Ins. Co., 202 S.W. 627; Prichard v. Conn. Fire Ins. Co., 203 S.W. 223. (5) Contracts of insurance need not be in writing. If the agent had authority his agreement for insurance or assignment of policies will bind the company. R. S. 1909, sec. 2993; Baile v. Ins. Co., 73 Mo. 371; Real Estate Saving Inst. v. Collonious, 63 Mo. 290; King v. Ins. Co., 195 Mo. 290; State v. Lincoln Trust Co., 144 Mo. 592; 15 Am. & Eng. Ency. Law (2 Ed.), 852; 1 Joyce on Insurance, sec. 525; Richards on Insurance, sec. 41; Vining v. Ins. Co., 89 Mo.App. 311; Bealmer v. Hartford Fire Ins. Co., 193 S.W. 847; Woolfolk v. Home Ins. Co., 202 S.W. 627; Prichard v. Conn. Fire Ins. Co., 203 S.W. 223. (6) Sec. 7047, 1909, is constitutional. It is a general and not a special law. State v. Bishop, 128 Mo. 373; State ex inf. v. Aetna Ins. Co., 150 Mo. 113; Hamman v. Central Coal & Coke Co., 156 Mo. 232; Ex Parte Berger, 193 Mo. 16; Phillips v. Mo. Pac. Ry. Co., 86 Mo. 540.
This is a suit upon a fire insurance policy. The plaintiff recovered judgment below in the sum of $ 1417.60. A motion for a new trial having proved unavailing, this appeal is taken. The essential facts are as follows:
Appellant insured the church building of the Baptist Church of Atlanta, Missouri, against fire, in the sum of fifteen hundred dollars. W. J. Dearing was the "surveying agent" for appellant in Atlanta, and as such countersigned all policies issued by it in that city, including the one here in question. Appellant was duly authorized to transact the business of insurance in this State, and Dearing was a duly licensed agent. Thereafter, the trustees of the church sold the building thus insured to plaintiffs, including in the sale the unexpired insurance, which was to be transferred to the purchasers. Later, and before the policy had expired by lapse of time, the building was totally destroyed by fire. The contract between plaintiffs and the trustees was never reduced to writing.
There was evidence that appellant's agent was informed, by plaintiffs, of their purchase of the building and unexpired insurance, and of the terms upon which it was made, very shortly after the purchase was made, and that he consented to the assignment of the insurance policy to plaintiffs and agreed to attend to the details necessary or usual in such cases, to vest the title to the policy in plaintiffs. The policy was at that time in the agent's possession. No written assignment of the policy to plaintiffs was ever made.
W. J. Dearing, testifying in behalf of defendant, stated that he represented the defendant as its agent at Atlanta; that his duties as such agent were to solicit insurance, take the application and send it in to the company, whereupon, if approved, it would be returned to him and he would look it over, and if conditions remained the same, would then collect the premium, countersign the policy and deliver it to the assured; that he had solicited the insurance here involved, and had countersigned the policy here in question, after receiving the premium; that no part of the premium had ever been refunded to the insured, or to plaintiffs, nor had defendant ever offered to refund any part of it, and that shortly after the sale, and before the fire occurred, he was informed that the trustees had agreed to assign the insurance to plaintiffs. Dearing further testified that none of the trustees of the church said anything to him about assigning the policy, nor did any member of the building committee say anything to him about it, although the chairman of the board of trustees told him of the sale of the building to plaintiffs; that he was never requested by anybody to assign the policy of insurance nor to have it assigned; that though he had represented the company for twenty years, he had never assigned a policy of insurance.
The petition was sufficient in form. The answer admitted the issuance and delivery of the insurance policy, and the sale of the building, but denied the assignment of the policy, and denied that the defendant or its said agent had ever consented to the assignment. The reply was a general denial.
The assignments of error are that the court erred in refusing to direct a verdict for defendant as a matter of law; that instructions numbered one, two and four, given in behalf of plaintiffs, are erroneous; that instructions numbered one and two, requested by defendant, were improperly refused; that the court erred in admitting incompetent evidence; that "the court by rulings upon evidence and instructions, did so construe Section 7047, Revised Statutes 1909, as to deny defendant equal protection of the law, and said section so construed violates the constitutional rights and guarantees of the defendant," and that the court erred in overruling the motion for a new trial, on the ground, among others, of the alleged unconstitutionality of Section 7047, supra. No question was made in the trial court as to the constitutionality of any other section of the statutes.
The plaintiffs below contended that the consent by defendant's agent, Dearing, to the transfer of the insurance policy, and his knowledge of the sale and its conditions, bound the defendant company as effectively as if the policy had in fact been assigned. The trial court, in effect, so instructed the jury. Defendant's instruction number...
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