Brown v. Connecticut Fire Insurance Company of Hartford, Connecticut
| Decision Date | 08 May 1917 |
| Citation | 195 S.W. 62,197 Mo.App. 317 |
| Parties | RACHEL BROWN, Respondent, v. CONNECTICUT FIRE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. John W McElhinney, Judge.
Judgment affirmed.
Seymour Edgerton and Bernard Greensfelder for appellant.
(1) Defendant's motion to strike out part of the reply should have been sustained. It was not proper to permit plaintiff to plead an equitable title in her reply when she alleged in her petition that she was the legal owner. A plaintiff must recover, if at all, upon the cause of action stated in the petition, and not upon one stated in the reply. Mathieson v. St. L. & San Francisco R. R., 219 Mo. 542-552; Ham v. St. L. R. R. Co., 149 Mo.App. 200; Mess v. Fitch, 212 Mo. 484-502; Schwabe v. Moore, 187 Mo.App. 74; Heill v. Mining Co., 119 Mo. 9-30; Mohney v. Reed, 40 Mo.App. 99; Rhoder v Holladay Klotz Co., 105 Mo.App. 279-314; Milliken v Commission Co., 202 Mo. 637-654. (2) The giving of notice of sale under a deed of trust with the knowledge of the assured avoids the policy. Springfield Steam Ldry Co. v. Traders' Ins. Co., 151 Mo. 90; Pearson v. German Ins. Co., 73 Mo.App. 480; Norris v. Hartford F. Ins. Co., 55 S.C. 450, 33 S.E. 566; Delaware Ins. Co. v. Greer, 120 F. 916, 61 L. R. A. 137; Merchants' Ins. Co. v. Brown, 77 Md. 79; Kelly v. St. Paul F. & M. Ins. Co., 56 Fla. 456, 47 So. 742. (3) Agency may be proved from facts and circumstances in evidence, by the conduct of the parties and the course of dealing between them. Direct evidence of the existence of the agency is not necessary. Meux v. Haller, 179 Mo.App. 466; Mosely v. Commission Co., 91 Mo.App. 500; Graham Paper Co. v. St. J. T. P. & P. Co., 79 Mo.App. 504. (4) If there is any substantial evidence tending to show agency, the question is one of fact to be submitted to the jury. Mosely v. Commission Co., 91 Mo.App. 500; Meux v. Haller, 179 Mo.App. 466. (5) The question of the agency of husband for wife is a question of fact to be determined by the jury, as in other cases of agency by a fair preponderance of the evidence. Long v. Martin, 71 Mo.App. 569, 152 Mo. 668; Marble v. Ins. Co., 43 Mo. 586; Edward v. Knapp. 97 Mo. 432; Graham Paper Co. v. St. J. T. P. & P. Co., 79 Mo.App. 504. (6) Knowledge acquired by an agent in the course of the agency is the knowledge of the principal. City Bank v. Phillips, 22 Mo. 85; Mechanics' Bank v. Schuenberg, 38 Mo. 228; Hickman v. Green, 123 Mo. 165; Hedrick v. Beiler, 110 Mo. 91; Kearney Bank v. Froman, 129 Mo. 127; Merchants' Nat'l Bank v. Lovett, 114 Mo. 519.
George E. Booth and Charles E. Morrow for respondent.
(1) The petition charged ownership in general and evidence tending to prove an equitable ownership was competent under the petition, and an equitable title at time of the loss is sufficient. Gaylord v. Ins. Co., 40 Mo. 117; Lingenfelter v. Ins. Co., 19 Mo.App. 268; Nute v. Ins. Co., 109 Mo.App. 585; 19 Cyc. 692; Richards on Insurance (3 Ed.), pp. 336-337. But the defendant pleaded in its answer a specific conveyance to, and record title in, the plaintiff and her husband, and it was proper for the plaintiff to reply that if the record title was in plaintiff and her husband that the property was purchased with her funds and she was the equitable owner thereof, and if he held any bare legal title it was in trust for her. The defendant can in no way be prejudiced by being thus specifically informed of the facts, and the reply was not a departure. Besides the solemn admission of ownership in plaintiff made by defendant in its original answer was not explained by defendant in its evidence and became conclusive on it and was no longer even a jury question. Steele v. Railroad, 265 Mo. 97. (2) There was no evidence tending to prove that plaintiff's husband was her agent. In such cases Bank of Ravenna v. Dobbins, 96 Mo.App. 693; Long v. Martin, 152 Mo. 668; Eystra v. Capelle, 61 Mo. 578. (3) The plaintiff's knowledge of the notice of sale of the property, as the term knowledge is used in the policy, means actual knowledge, as distinguished from constructive knowledge or constructive notice. There is a difference between want of knowledge and want of notice. Knowledge must be actual and personal. One may have notice constructively, but to have knowledge he must have been informed and know. 12 Am. & Eng. Ency. of Law (1 Ed.), p. 527; Hill v. Utley, 155 Mo. 232; State v. Ransberger, 106 Mo. 135; Fidelity & Casualty Co. v. Gates City National Bank, 97 Ga. 634; Clark v. Ingram, 107 Ga. 565; Cleveland Wooden Mills v. Sibert, 81 Ala. 140; People v. Carroll, 58 Tenn. (11 Heisk.) 417. "Notice is information of a fact actually communicated to a person or presumed by law to have been acquired by him and is equivalent in its legal effect to full knowledge of the fact, and to which the law attributes the same consequences as would be imputed to knowledge. 16 Am. Eng. Ency. of Law (1 Ed.), pp. 787-788. (4) The clause in the policy, "if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of the sale of any property covered by this policy, by virtue of any mortgage or deed of trust," the policy shall be void, means that the policy shall become void only when the insured has knowledge of the giving of the notice of sale before or at the time the same was given. Bellevue Roller Mill Co. v. Insurance Co., 39 P. 196; North British & M. Ins. Co. v. Freeman, 33 S.W. 1091; Insurance Co. v. Davis, 84 S.W. 260. The last case above cited reviews all of the authorities. Some courts have placed a different construction upon this clause in the standard policy. (Schroeder v. Ins. Co., 132 Cal. 18; Delaware Ins. Co. v. Greer, 120 F. 916). However, under the rule of construction in Missouri, if the language is at all doubtful or ambiguous, it must be strictly construed against the company and in such a way as not to work a forfeiture of the policy. Stix v. Indemnity Co., 175 Mo.App. 171. Numerous decisions in this State are to the same effect. Still v. The Connecticut Fire Ins. Co., 185 Mo.App. 550; Reality Co. v. Ins. Co., 179 Mo.App. 138; Grocery Co. v. Fidelity, Etc. Co., 130 Mo.App. 421; Mining Co. v. Casualty Co., 143 Mo.App. 555; Beile v. Protective Assn., 155 Mo.App. 629; Wise v. Accident Ins. Co., 186 Mo App. 22; Stark v. Ins. Co., 176 Mo. 574. When a fire insurance company doing nation-wide business has employed language which has become the subject of seriously conflicting judicial interpretation, it should be held to have adopted and this court should adopt that construction most favorable to the insured. Schmohle v. Ins. Co., 177 S.W. 1108.
This is an action brought by Rachel Brown against the Connecticut Fire Insurance Company, of Hartford, Connecticut, to recover a proportionate amount of the damage caused to her home by fire, said home being covered by a policy of insurance issued by the defendant company. There were several other policies of insurance on the said property, one of which was issued by the Providence-Washington Insurance Company, whom said Rachel Brown sued in a separate action, judgment in which case by stipulation of counsel is to abide the result in this case. On trial before a jury, a judgment was rendered in favor of the plaintiff and against the defendant in the sum of $ 915; $ 650 of this amount being the proportionate part of the estimated amount of damage by fire, together with interest on such sum, and the remainder, $ 265, being for attorneys' fees and damages. On motion for a new trial the court ordered that said motion be overruled upon the plaintiff entering a remittitur of $ 265. The remittitur was made and judgment duly entered against the defendant, appellant here, for $ 650, from which judgment defendant appeals.
Plaintiff's petition contains a general allegation of ownership of the property insured. The defendant, in its second amended answer denies that plaintiff was the owner of the property at the time the policy was issued, or at the time of the fire, and alleges that the legal title to said property was at all times in question in plaintiff, Rachel Brown and H. G. Brown, her husband, as tenants by the entirety. Plaintiff by way of reply alleges that she was in point of fact the real and equitable owner of the said property, that the property had been purchased with property and moneys belonging exclusively to her and that if the legal title thereto appeared in her name and that of H. G. Brown, her husband, as tenants by the entirety, the said H. G. Brown held only the legal title thereto and held same in trust for plaintiff.
The policy of insurance contains a clause which provides that it should be void, "if the interest of the insured be other than unconditional and sole ownership." And it also provides that the policy shall be void, "if with the knowledge of the insured foreclosure proceedings be commenced, or notice given of sale of any property covered by this insurance by virtue of any mortgage or trust deed." (Italics ours.)
The facts developed at the trial show that Rachel Brown, the plaintiff, was unable to read or write; that plaintiff had with property and moneys belonging to her, in 1904, purchased a home, but that the deed was made out in the name of said Rachel Brown and H. G. Brown, husband and wife. This fact, however, was unknown to the plaintiff until April, 1907; when she learned of the fact that the property was not in her name, her husband agreed to rectify the matter, and they jointly, as...
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