Boyle v. United States Fire Ins. Co.

• Decision Date: 30 April 1923
• Docket Number: No. 14652.,14652.
• Citation: 250 S.W. 641
• Parties: BOYLE v. UNITED STATES FIRE INS. CO.
• Court: Missouri Court of Appeals

250 S.W. 641

BOYLE v. UNITED STATES FIRE INS. CO.

No. 14652.

Kansas City Court of Appeals. Missouri.

April 30, 1923.

Appeal from Circuit Court, Mercer County; L. B. Woods, Judge.

"Not to be officially published."

Action by Juanita Boyle against United States Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Lucien May, of Princeton, and Crow & Newman, of Kansas City, for appellant.

Lesley P., Robinson, of Trenton, for respondent.

TRIMBLE, P. J.

Plaintiff's action is on a" policy of fire insurance for $350 on an automobile costing $1,750. The policy was issued on December 9, 1920. During tho written term of the policy the automobile burned. The loss of the automobile was reported to the agent of the company at Trenton, who issued and countersigned the policy, and, not receiving or obtaining any assurance, recognition or satisfaction, plaintiff's counsel notified the company of the loss and requested blank proofs of loss, but likewise no attention was paid to this request.

The policy, in effect, provided that no other or concurrent insurance was to be carried on said property. The plaintiff, however, did take out another policy of insurance on the automobile, on which plaintiff was paid $617. The defense was made that this additional insurance invalidated the policy in controversy. Plaintiff claims that this was waived.

It seems that a Mr. Allen was defendant's agent in Trenton, who issued and countersigned the policy in question, and collected the premium.

The policy was never taken away by plaintiff, but was left in the agent's office for safekeeping and preservation by him. On the day plaintiff took out the additional insurance, and while she and the other insurance agent were engaged in the matter, plaintiff telephoned the defendant's agent that she was taking out additional insurance, and wanted to get the name of the company holding the policy he had. She also told him the amount of the additional insurance she was taking. Defendant's agent, after looking at the policy he had in his office, telephoned her the desired information, making no objection to her taking additional insurance, but remarked to her that the insurance under the policy he held had a long time to run

Appellant's theory of the case is that the evidence shows that the agent was merely notified of plaintiff's intention to take out additional insurance in the future, and that consequently mere notice of such intention, without notice of the insurance as an accomplished fact, is not sufficient to constitute waiver. Of course, if that is what took place, then there was no waiver. Harwood v. National, etc., Ins. Co., 170 Mo. App. 298, 303, 304, 156 S. W. 475; Rogers v. Home Ins. Co., 155 Mo. App. 276, 136 S. W. 743.

The record is in a somewhat unsatisfactory condition as to just what information was conveyed to the defendant's agent over the telephone. While the facts may very well be that the plaintiff and the agent for the additional insurance were engaged in preparing such insurance, and were in the very act of effecting it when defendant's agent was telephoned to, yet it is not altogether clear or free from doubt as to whether defendant's agent was fully informed of the situation or not. Plaintiff's evidence, looked at in one way, seems to indicate that her talk with defendant's agent over the telephone...