Block v. United States Fidelity & Guaranty Co.

• Citation: 290 S.W. 429
• Decision Date: 23 November 1926
• Docket Number: No. 25914.,25914.
• Court: Missouri Supreme Court
• Parties: BLOCK v. UNITED STATES FIDELITY & GUARANTY CO. OF BALTIMORE, MD.

290 S.W. 429

BLOCK v. UNITED STATES FIDELITY & GUARANTY CO. OF BALTIMORE, MD.

No. 25914.

Supreme Court of Missouri, In Banc.

November 23, 1926.

Motion for Rehearing Overruled December 30, 1926.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by Arnold Block against the United States Fidelity & Guaranty Company of Baltimore, Md. Verdict for plaintiff. From judgment granting defendant's motion for new trial unless plaintiff filed remittitur, plaintiff appeals. Transferred from Kansas City Court of Appeals. Reversed and remanded, with directions to enter judgment for plaintiff.

J. C. Rosenberger, D. G. Warrick, and B.. E. Talbert, all of Kansas City, for appellant.

Ball & Ryland, of Kansas City, for respondent. Division No. 1.

SEDDON, C.

Action to recover for two burglary losses, alleged to have been suffered by plaintiff, upon an open stock burglary policy issued by defendant for a term beginning on November 20, 1919, and ending one year thereafter, and renewed for another year terminating on November 20, 1921. The petition is cast in two counts, each based upon a separate and distinct burglary loss.

Plaintiff, at the times herein mentioned, was a retail dealer in automobile tires and accessories. On September 5, 1919, he purchased the business and stock of merchandise of one Fritz Meyn, doing business as Lotto. Miles Tire Company, at 2305 Grand avenue in Kansas City, Mo. The policy sued on was taken out by plaintiff on or about November 20, 1919, through Brown, Mann & Barnum, insurance agents in Kansas City. It is executed on behalf of defendant company by John R. Bland, president, and R. Howard Bland, secretary, and countersigned at Kansas City, Mo., by Thomas McGee & Son, its authorized representative. On or about March 4, 1920, plaintiff discontinued the use of the trade-name, Lotta Miles Tire Company, and changed the name to Block Tire Company, and a rider, countersigned by "Thomas McGee & Son, authorized representative," was issued by defendant reciting:

"It is hereby understood and agreed that the name of assured under this policy is corrected to read as follows: `Arnold Block, doing business as Block Tire Company.'"

On or about May 7, 1920, plaintiff moved his merchandise and place of business from 2305 Grand avenue to 2307 Grand avenue, and a rider dated on that day was issued by defendant, countersigned by "Thomas McGee & Son, authorized representative," transferring the policy so as to cover the latter location.

Prior to the expiration of the term of the original policy, one L. S. Davis, doing business as Davis & Co., also an insurance agent in Kansas City, requested of plaintiff the privilege of renewing the burglary policy for another year. Plaintiff testified:

"He (Davis) said that he could write my burglary insurance as well as any one else; that he was an agent of the same company in fact and could place my insurance with the same company.

"Q. What company did he refer to or mention? A. United States Fidelity & Guaranty Company. He said that he would like to get the renewal of the policy that he might make the commission on it. I gave my permission to write the policy."

A renewal certificate was thereupon issued by defendant, countersigned at Kansas City by "Thomas McGee & Son, authorized agent," continuing said policy in force from November 20, 1920, to November 20, 1921, in consideration of a premium of $205.50. The renewal certificate was duly delivered to plaintiff by said L. S. Davis. Plaintiff thereupon paid Davis the amount of the annual premium, $205.50, which premium, less Davis' commission for procuring the renewal of the policy, Davis in turn paid to Thomas McGee & Son, defendant's authorized representative.

On March 15, 1921, about four months after the renewal of the policy and during the renewal period, plaintiff moved his merchandise and place of business from 2307 Grand avenue to 2433 McGee Tratlicway, at which latter place both burglaries in question occurred. On the day he moved to the new location, plaintiff instructed his bookkeeper and secretary, Miss Alma Murphy, to notify Mr. Davis of the removal. Miss Murphy testified that she called Mr. Davis on the telephone, notified him of the removal, and

"I told him about the policies, both the fire and burglary, and that I wanted to know if we would be covered, and he said: 'Yes. at both places and in transit. Yes, you are covered, you are protected.'"

On the same day, Davis' bookkeeper, Miss Dora Hutchison, was instructed by Davis to see that the proper notices of removal were attended to. She testified:

"I called up the McGee & Sons' office, and said I wanted to report the removal of the Block Tire Company, and the lady said, 'All right,' and I said, 'Have you a pencil and paper upon which to make the notation?' and she said she had, and I gave this particular number here, U. S. P. and G., and I said, `Remove to 2433 McGee Trafficway,' and asked would they be covered from to-day, and she assured me that they would and that the permits would be issued."

Witness further testified that the telephone notice of removal to McGee & Sons' office was given in pursuance of the usual and customary practice respecting such removals. Upon receiving assurance from the person at McGee & Sons' office, Miss Hutchison made a written memorandum thereof, which she filed on a spindle in Davis' office and which was put in 'evidence at the trial.

One J. C. Horn was an employee of Thomas McGee & Sons, defendant's authorized agents, in charge of the burglary department. He testified that it was a matter of common occurrence and daily routine in that office for persons having dealings or business with defendant company to call on the telephone and give notifications of removals, or changes of name, or other changed conditions which required amendments of policies; that it is contemplated, when a policy is issued, that removals may take place, or other conditions may thereafter arise, calling for amendments to the policy; that the person attending the telephone switchboard in the office of McGee & Sons receives such calls as they come in, and that it is the duty of the switchboard operator to connect the party calling with the person in the office of McGee & Sons having charge of the particular department or kind of insurance involved; that it is the duty of the switchboard operator, when a message is given on the telephone in the absence, of the head of the department or the person having charge of the particular item of insurance business, to take down the message and see that the message reaches the right party; and, that such were the general instructions given to the switchboard operator. Mr. Horn denied having himself received the message, or notice of removal of plaintiff's business, from Davis' office. Defendant produced as witnesses two women employees of Thomas McGee & Sons, one being a switchboard operator and the other a policy writer in the burglary department, and both testified that they knew nothing about such message having been received and that they did not remember receiving any calls from Davis' office. At least two other women employees in McGee & Sons' office acted as "relief" telephone operators, but defendant produced neither of them as a witness at the trial, nor did defendant account for all the persons in the office who might have answered the telephone at the time. The evidence indicates that there were, at the time, some seven or more individual telephones in the office connecting with the switchboard and that there were some twelve or more persons employed in the office.

Eleven days after plaintiff's removal to 2433 McGee Trafficway, during the night of March 25 or the early morning of March 26, 1921, plaintiff's store was burglarized, and automobile tires and tubes of the value of $2,-131.06 were feloniously taken from within the premises. The burglary was discovered on Sunday morning March 26, and on the next day, Monday, March 27, plaintiff notified Mr. L. S. Davis of his loss. On the same day of the day following, one W. R. Taylor, defendant's resident secretary and inspector of burglary risks, appeared at plaintiff's store and made an inspection of the premises. According to plaintiff's testimony, Taylor told plaintiff that he would have to make certain changes in the premises in order to make the place more secure. Plaintiff testified:

"Mr. Taylor went on further to tell me that if I made these changes the risk would be all right; that if I didn't make these changes there would be nothing else for the company to do but get off the risk."

Taylor said nothing to plaintiff about the policy being canceled or suspended. Plaintiff told Taylor that he would comply with Taylor's requirements, or suggested changes in the premises, which plaintiff immediately did at some substantial expense.

Mr. John H. Crandall, the office manager of Davis & Co., testified that, on the Monday following the burglary, plaintiff notified Davis & Co. of his loss. Immediately after receiving that notification, Crandall called the office of Thomas McGee & Sons on the telephone and notified them that there had been a loss under the burglary policy issued to Block Tire Company and was told by McGee & Sons' office that the matter would be looked after. Shortly afterward, McGee & Sons notified Crandall by telephone that they had no record in their office of the removal of plaintiff's place of business from 2307 Grand avenue to 2433 McGee Trafficway. Crandall immediately started an inquiry in Davis' office to see what had been done about notifying McGee & Sons of the removal, and after making an inquiry as to the facts, he went to McGee & Sons' office, where he conferred with Mr. Joseph McGee of that office. Mr. McGee then called Mr. Taylor, the resident secretary of defendant, and Crandall informed him of the circumstances of the loss and the contention of McGee & Sons that they had not been...