Bersche v. St. Louis Mut. Fire & Marine Ins. Co.

• Decision Date: 31 March 1862
• Citation: 31 Mo. 555
• Parties: JACOB BERSCHE et al., Respondents, v. ST. LOUIS MUTUAL FIRE AND MARINE INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

31 Mo. 555

JACOB BERSCHE et al., Respondents,

v.ST. LOUIS MUTUAL FIRE AND MARINE INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1862.

1. A provision in a policy of insurance upon buildings, that it should be void unless the encumbrances be expressed therein, is satisfied if the application (which formed part of the policy) state that the property was encumbered, without stating the amount.

2. The notice given by the insurance company to the assured, after the fire, of its determination to rebuild the premises, was a waiver of the defence that the assured had not stated the amount of the encumbrances upon the property insured.

Appeal from St. Louis Circuit Court.

This was a suit upon a policy of insurance against loss by fire, upon a starch factory and its machinery, dated March 11, 1858, in the sum of five thousand dollars. The policy provided that the charter and by-laws and conditions of insurance annexed to the policy should form part thereof. The conditions of insurance provided, “this policy is made and accepted with reference to the application for insurance which forms part hereof.” In the application for insurance signed by the plaintiff, it was declared that “the company would be bound by no statement made to the agent not contained in the application.” To the question, “What is the title, and whether encumbered by mortgage or otherwise, and to what amount?” the answer was, “Real estate, encumbered to the amount of $____.” The charter (sec. 2) provided, that all persons insuring should become thereby members of the company for the time being, and be concluded and bound by the provisions of said act; it also bound the property insured by a lien, to the amount of the premium note, to the company--sec. 12. The charter further provided, that the company might make insurance for any time not less than one month nor more than ten years; also, that any policy of insurance issued by said company, signed by the president, countersigned by the secretary, and sealed with the seal of the company, should be deemed valid and binding on said company in all cases wherein the assured had a title in fee simple, unencumbered, to the building or buildings insured, and to the land covered by the same; but if the assured had a lease estate therein, or if the premises were encumbered, the policy should be void unless the true title of the assured and the encumbrances were expressed thereon--sec. 21.

On the 6th April, 1858, the property was destroyed by fire. At the date of the policy, the property was encumbered to an amount exceeding $25,000, by deeds of trust, judgments, and mechanics' liens.

At the trial, the defendant proved that the application was filled up by its agent, and signed by the plaintiffs in the presence of the secretary, who saw it before it was signed, and upon it issued the policy; and also proved the existence of the encumbrances.

The plaintiffs proved a notice in writing by the secretary, dated May 3d, stating that defendant, in common with other insurers, had elected to repair the damaged property--the defendant objecting to the proof as not within the issues.

At the instance of plaintiffs, the court gave the following instructions:

1. If the jury believe from the evidence that said defendant delivered to said plaintiffs the notice of the intention of defendant to rebuild, given in evidence by plaintiffs, then the jury may infer that said defendant waived its right to set up as a defence to this action, that plaintiffs had not, in the application given in evidence, stated the amount of the encumbrances.

2. The application in evidence in this case is a part of the policy sued upon, and the within words in said application, to wit, “encumbered to the amount of $____,” is an expression of the encumbrances upon the policy within the intent and meaning of the 21st section of the defendant's charter.

To these instructions defendant excepted, and asked for counter-instructions; which were refused.

W. N. Grover, with B. A. Hill, for appellant.

I. The charter, by-laws, conditions of insurance, application, and policy, are all to be taken and construed as one entire instrument.

The court erred in instructing the jury that the statement in the application, “real estate, encumbered to the amount of $____,” was an expression of the true title of the assured and of the encumbrances thereon. The word “true” must refer as well to the encumbrances as to the title.

That the true title and the encumbrances were not set out and expressed within the meaning of the policy, see Brown v. People's M. Ins. Co. 11 Cush. (Mass.) 280; Haywood v. Agawam Mut. Ins. Co. 10 Cush. 444; Wilbur v. Bowditch F. Ins. Co. 10 Cush. 446; Friesmuth v. Agawam Mut. F. Ins. Co. 10 Cush. 558; Loehner v. Home Mut. Ins. Co. 17 Mo. 247; Davenport v. New England M. Ins. Co. 6 Cush. 340; Clark v. New England M. Ins. Co. 6 Cush. 342; Smith v. Bowditch F. Ins. Co. 6 Cush. 448; Bowditch F. Ins. Co. v. Winslow, 3 Gray (Mass.), 415; Jenkins v. Quincy M. F. Ins. Co. 7 Gray, 370; Lowell v. Middlebury Ins. Co. 8 Cush. 127; Pinkham v. Morang, 40 Maine, 587; Brown v. Williams, 28 Maine, 252; Addison v. Louisville Ins. Co. 7 B. Mon. 470.

II. The offer to rebuild, even if made with a full knowledge of all the facts, did not conclude the defendant, nor operate as an estoppel or waiver. See authorities cited in brief presented in Bersche v. Globe M. Ins. Co., at this term (31 Mo. 546).

There is, however, a broad distinction between the two cases. Can the company waive a condition imposed by its act of incorporation? The policy was void, not voidable. (5 Har. & J. 193; 17 Mass. 258; 5 Mass. 395; 4 N. H. 285.)

Glover and Shepley, for respondents.

I. The provisions of the charter have the same force as if incorporated into the policy, and no greater effect; and the provision of which defendants claim protection could be waived, although it is in the words of the charter instead of the mere words of the policy. (Clark v. N. Eng. M. Ins. Co. 6 Cush. 342; Wood v. Rutland M. Ins. Co. 31 Verm. 552; Union F. Ins. Co. v. Kayser, 32 N. H. 313; Frost v. Saratoga M. Ins. Co. 5 Denio, 154.

II. If a forfeiture had been incurred, ...