Breckinridge v. American Cent. Ins. Co.

• Decision Date: 31 October 1885
• Citation: 87 Mo. 62
• Parties: BRECKINRIDGE v. THE AMERICAN CENTRAL INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

87 Mo. 62

BRECKINRIDGE

v.THE AMERICAN CENTRAL INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Cole Circuit Court.--HON. E. L. EDWARDS, Judge.

AFFIRMED.

A. M. Hough and J. R. Edwards for appellant.

(1) The assignment of the policy was improperly admitted in evidence. There was no proof of the authenticity of the signatures of the agents purporting to have consented to the assignment, and no proof that they had any authority to consent for the company to the assignment, or that the company ever consented thereto. It devolved on the plaintiff to prove by competent testimony, that Lord and Howell were the “regular agents” of the defendant. Franklin v. Ins. Co., 52 Mo. 465. (2) The deed to plaintiff was improperly admitted in evidence, because of the variance between the policy and said deed. Besides, the deed was acknowledged before a justice of the peace of a different county from the one in which the premises are, and for this reason the deed is a nullity. R. S., 1879, sec. 676; 46 Mo. 472. The deed being a nullity, the plaintiff had no insurable interest in the property alleged to have been destroyed. Ins. Co. v. McKee, 94 Ill. 494. (3) The evidence on the part of the plaintiff in this case utterly fails to prove the burning of the house. The statements contained in the builder's estimate of the loss, are not proof of such facts. Newmark v. Ins. Co., 30 Mo. 160; Brown v. Ins. Co., 68 Mo. 133; Citizens' Fire Ins. Co. v. Doll, 35 Md. 89; Neese v. Ins. Co., 55 Ia. 604; Com. Ins. Co. v. Sennitt,41 Pa. St. 161; Howard v. Ins. Co., 4 Den. 502. A full compliance with the conditions of the policy, unless waived by the defendant, is a condition precedent to recovery in every case, and the insured cannot say that he will select out this or that condition and comply with it, and expect to recover. Edgerly v. Farmers' Ins. Co., 43 Ia. 587; Blossom v. Lycoming Ins. Co., 64 N. Y. 162; Noonan v. Hartford Fire Ins. Co., 21 Mo. 81. (4) It was competent to show the common reputation of the house, and the character of the people visiting it. 3 Wharton Crim. Law, sec. 2393; U. S. v. Gray, 2 Cranch C. C. R. 675; State v. McDowell, Dudley (S. C.) 346; 4 Mo. App. 503. Since the only manner of establishing the character and the reputation of an individual is by general reputation, it would seem to follow that the same principle would apply in proving or establishing the good or bad character of the house. Drake v. State, S. C. Nebraska, Cent. Law Jour., Dec. 21, 1883. (5) The court erred in admitting the deposition of A. P. McMillan, in rebuttal, for the reason that the deposition had been procured on the part of the plaintiff for a consideration. In other words, plaintiff had paid, or was to pay for it. The withdrawal of said deposition from the jury, by instruction, did not cure the error. The Lycoming Fire Ins. Co. v. Rubin, 79 Ill. 402; Lafayette, B. & M. Ry. v. Winslow et al., 66 Ill. 219. (6) The court erred in giving instructions for plaintiff, and in refusing instructions asked by defendant.

Edwin Silver and J. P. Nixon for respondent.

(1) The objection that there was no proof of the authenticity of the signature of the agents' approval of the assignment, is untenable, because, the approval of the assignment was made by Lord and Howell, who had also countersigned the policy, and the genuine signatures of Lord and Howell being in evidence in the case, the jury was at liberty to determine from a comparison with the genuine signature, whether the second was authentic. 1 Greenl. on Evid., sec. 578; State v. Clinton, 67 Mo. 380. The answer expressly admits the signature of the agents in making the approval, and denies only their authority in the premises. (2) Whether or not the agents had authority to make the assignment, was a question for the jury. Combs v. Ins. Co., 43 Mo. 152; Hough v. Ins. Co., 29 Conn. 10; Nicoll v. Ins. Co., 3 Wood & M. 529. Nor is direct evidence required to establish an agency. Hull v. Jones, 69 Mo. 587. (3) The deed to plaintiff by McMillan was properly admitted. It was for the jury to say whether the description embraced the insured property. Barry v. Otto, 56 Mo. 177; Tawless v. Newman, 5 Mo. 236. Extrinsic evidence was competent to identify the land as embracing the insured property. Means v. Lavergne, 50 Mo. 343; Orr v. How, 55 Mo. 328. And plaintiff is not precluded from availing himself of the benefit of such evidence, although furnished after the close of his case. Kelly v. Ry., 75 Mo. 141. (4) The McMillan deed to plaintiff was good between the parties, although acknowledged before a justice of the peace in Laclede county. (5) The builder's estimate and proof of loss were admissible in evidence, (6) The court rightly excluded evidence to show that the insured house had the reputation of being a bawdy house. Loehner v. Ins. Co., 17 Mo. 247; Loehner v. Ins. Co., 19 Mo. 628; Heath v. West, 26 N. H. 191; Prescott v. Hayes, 43 N. H. 599; U. S. v. Stephens, 4 Cr. 338. (7) Appellant's point that there is no proof of the burning is not well taken. In its answer it denies “the burning of the property as alleged,” which is not a positive denial, but is a negative pregnant, and insufficient. Shaetzel v. Ins. Co., 22 Wis. 413; Solding v. Bartlett, 35 Mo. 90; Garth v. Caldwell, 72 Mo. 622. Besides, the answer also expressly admits the burning. Hyeronomus v. Allison, 52 Mo. 103. (8) The defendant having stood on the demurrer to the evidence, the plaintiff can have the benefit of any afterwards admitted on the trial. Kelly v. Ry., 75 Mo. 141. (9) Plaintiff's instructions correctly declared the law. Geib v. Ins. Co., 1 Dil. 445; Mack v. Ins. Co., 2 McCrary, 312; Langstrauss v. Ins. Co., 57 Mo. 107; Combs v. Ins. Co., 43 Mo. 152; Ins. Co. v. Wilkinson, 13 Wal. 272; Hough v. Ins. Co., 3 Wood & M. 520; Franklin v. Ins. Co., 42 Mo. 456; Hayward v. Ins. Co., 52 Mo. 181; St. Louis Ins. Co. v. Kyle, 11 Mo. 278; Phillips v. Ins. Co., 14 Mo. 220; 34 Conn. 5-70. No act of the insured, after the assignment of the policy, can impair the rights of the assignee. New England, etc., v. Wetmon, 32 Ill. 221; Pollard v. Somerset Co., 43 Me. 221; Wood on Insurance, 581. (10) The insurer is liable for the whole amount of a valued policy, although, in the application, the property was over valued, but without fraud or intentional misrepresentation in such over valuation. Phillips v. Ins. Co., 10 Cush. 350; Fuller v. Ins. Co., 4 Met. 206. Defendant's own evidence in this case, shows the house to have been worth nine hundred and fifty dollars. (11) The instructions refused for defendant were rightly refused. (12) The request for a new trial because of newly discovered evidence was rightly overruled. Cook v. Ry., 56 Mo. 381; State v. Ray, 53 Mo. 345.

SHERWOOD, J.

The plaintiff sues on a policy of insurance, number 2,081, issued by the defendant company, assigned to him by one A. P. McMillan, to whom the policy was issued on property described therein as “on his two-story shingle roof frame building, occupied by tenant as a dwelling situated on the east side of Elm street, Jefferson City, Cole county, Mo., reference had to application and survey number 2,081, on file, which is his warranty, and a part hereof.” The application for insurance thus referred to in the policy, and made a part thereof, states that the lot was “known as the lot conveyed by Abraham Flood to W. H. Payne.”

The deed from McMillan to plaintiff described the property as a certain lot in Jefferson City, etc., “beginning at a point on the northwest corner of out lot thirty-four, on Chestnut street, opposite Elm, and running southwest two hundred and thirty-three feet and ten inches; thence at right angles one hundred and twelve feet and ten inches, parallel with the line between lots thirty-four and thirty-seven; thence northeastwardly, parallel with Chestnut street, two hundred and thirty-three feet and ten inches, thence northwestwardly by west two hundred and twelve feet and ten inches, to the place of beginning.” Objections were taken to this deed being read in evidence.

I. It is impossible for this court, from an inspection of the description contained in the deed, and that in the policy, to determine whether there is any material variance between the two descriptions. Counsel inform us that Elm street runs from the eastern to the western limits of Jefferson City, and that Chestnut street runs from the northern to the southern limits of the city, and hence it is an utter impossibility for the house to be located on the east side of Elm street. There was no evidence on this point, and we certainly cannot take judicial notice of the streets of this city, nor of their directions, etc.

The deed does not say whereabouts on out lot thirty-four the house is, and if Chestnut street is “opposite Elm,” that may be a parallel street to Chestnut street, and the out lot thirty-four may extend between two streets, and the house may be on the east side of Elm. Besides, the application for insurance, referred to in the policy, says the lot was “known as the lot conveyed by Abraham Flood to W. H. Payne,” and extrinsic evidence identified the lot as being known as the Payne lot, and that it had been sold to McMillan by Payne. Moreover, leaving the deed and its description out of view, granting that it was as defective as defendant claims, still, considering all the circumstances attendant on the transaction, plaintiff can maintain his action, if he may be regarded as in receipt of a legal assignment of McMillan's interest in the policy, and as the equitable assignee of McMillan's interest in the land. And the same particularity of description of the land is not required in a case of this sort, as in an action of ejectment for the land. The suit is on the policy, and evidence reasonably tending to establish that the house insured was on the land conveyed is sufficient. Taking all these things into consideration, we rule the point against the...