Burge v. Greenwich Insurance Co.

• Decision Date: 12 April 1904
• Citation: 80 S.W. 342,106 Mo.App. 244
• Parties: BURGE BROTHERS, Respondents, v. GREENWICH INSURANCE COMPANY, Appellant
• Court: Missouri Court of Appeals

80 S.W. 342

106 Mo.App. 244

BURGE BROTHERS, Respondents, v. GREENWICH INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 12, 1904

Appeal from Barry Circuit Court.--Hon. H. C. Pepper, Judge.

Judgment affirmed.

Sebree & Farrington and George Hubbert for appellant.

(1) Respondents' fraudulent claims and false swearing are sufficient to defeat the action. Pearl F. Burge admittedly swore falsely concerning the subject of the insurance notably in this, that he testified that the respondents had maintained the stock at not less than the value of $ 6,000 or $ 7,000 and as high as $ 8,500 from early in 1891 to the date of the loss, and yet he made oath that the value was $ 2,000 in the spring of 1901; and well informed, disinterested men put the value at about $ 3,500 to $ 4,000 at most, when he put it at double that and more. The admission that the whole insurance was more than three-fourths the value of the insured property stamps the claim of respondents, in the face of the express stipulations of the policy, as fraudulent prima facie. The testimony of such a party so effectually contradicted and impeached, is not entitled to consideration--it is "no evidence." State v Huff, 161 Mo. 459; Weltmer v. Bishop, 171 Mo 116; Payne v. Railroad, 136 Mo. 583. (2) The excessive insurance, in flat violation of the terms of the policy, and for which it declares itself void, defeats any just recovery by respondents. After most deliberate and mature consideration, Pearl Burge fixed the value of the insured property at not more than $ 7,116.85, under oath; when the value must be at least $ 7,800 to warrant the admitted $ 5,850 insurance, without making the whole policy void under the contract between the parties. To save such consequence the trial court necessarily made and enforced a new contract between the parties, or assumed they had made quite a different one from what we find in the policy unless we ignore the above-mentioned clause altogether. 2 May on Ins., p. 795, sec. 364a; 13 Am. and Eng. Ency. Law (2 Ed.), p. 300; Reitmiller v. Fire Assn., 38 Mo.App. 118; Dolan v. Town Mut. Co., 88 Mo.App. 666; Barnard v. Ins. Co., 27 Mo.App. 26; Dietz v. Ins. Co., 38 Mo. 85; Bahner v. Ins. Co., 17 A. 983. Besides, our statute restricts the contract to a risk of only three-fourths the value; and certainly the courts should not favor a contract to the contrary; nor construe a policy which complies with the law; in terms, to be outside the law or non-effective between the parties. (3) Compliance with the terms of the policy requiring proofs of loss of a certain character is a necessary precedent condition to the right of recovery, unless a waiver thereof be proved. Porter v. Ins. Co., 62 Mo.App. 520; Burnham v. Ins. Co., 75 Mo.App. 394. And proofs required to be made, signed and sworn to by the assured can not be made by an agent of the assured, so as to comply with the requirements. Exceptions to this rule can arise only out of the necessities of the case, as in the event of insanity, absence of the assured from the country, or peculiar knowledge of the agent in charge of the subject-matter; but there is nothing here to intimate such necessity. 7 Am. and Eng. Ency. Law (2 Ed.), 1048; 13 Am. and Eng. Ency. Law (2 Ed.), p. 332; Sims v. Ins. Co., 47 Mo. 54; Clement on Fire Ins., p. 206. (4) What can there be said in support of the action of the trial court in leaving to the jury the duty of determining under the respondents' first instruction whether they had complied with the conditions required by the terms of the policy? That could be done only by first ascertaining from the contract what those conditions or terms were. Gas Light Co. v. Amer. Fire Co., 33 Mo.App. 348; Edwards v. Smith, 63 Mo. 119; Peterbaugh v. Township Board, 53 Mo. 470; Chapman v. Railroad, 114 Mo. 542. (5) There has been no waiver of the conditions of the policy under discussion. So far as the action of the appellant proceeded upon the supposition that the statement in evidence constituted the required proofs of the assured, it must be borne in mind that appellant was deceived into such action by the use of the forms furnished to the respondents by a mere agent, not known to be such. And there could be no waiver under such circumstances of ignorance upon the part of the appellant; and waiver of one does not imply waiver of another. 16 Am. and Eng. Ency. Law (2 Ed.), p. 939. (6) It is no waiver of proofs of loss for a defendant to plead non-liability on the ground, also, that the loss was not within the conditions of the policy. Dezell v. Fidelity Co., 75 S.W. 1102. Waiver is sometimes said to be distinguished from estoppel, and to depend upon intention; but mere intention can not constitute waiver. Frank v. Ins. Co., 60 Mo.App. 673; Stiepel v. Ins. Co., 55 Mo.App. 224. Indeed it is held that, "There must be something in the conduct of the insurer in the nature of estoppel, to constitute a waiver of a condition in a policy. The insurer must have done something, or omitted to do something which has misled the assured and caused him to believe that would not be expected of him which later is claimed he should have performed." Porter v. Ins. Co., 62 Mo.App. 520; Grigsby v. Ins. Co., 40 Mo.App. 276; Hanna v. Ins. Co., 36 Mo.App. 538; Leigh v. Ins. Co., 37 Mo.App. 542; Erwin v. Ins. Co., 24 Mo.App. 151. "Waiver" and "estoppel" are interchangeable terms, is the prevailing opinion. 16 Am. and Eng. Ency. Law (2 Ed.), 935.

French & Mayhew for respondents.

(1) After the fire P. E. Burge a member of the firm talked to Mr. Manley over the telephone, recognized his voice, Manley told him it would be all right to send his father over to make proof of loss. Proof was regularly made and signed Burge Bros., by W. D. Burge. This statement was sworn to by W. D. Burge before C. D. Manley, agent of the company who was well acquainted with the Burge brothers and also W. D. Burge the father of the Burge brothers and knew he was not a member of the firm, and knew that the father stayed in the store, and was familiar with the surroundings, and Mr. Manley wrote the policy in this case. This was sufficient. 13 Am. and Eng. Ency. Law (2 Ed.), p. 332; Sims v. Ins. Co., 47 Mo. 54; Burns v. Fire Ins. Co., 90 N.W. 411, 9 Detroit Leg. N. 154. (2) The power of insurance agents is presumed to be coextensive with the business entrusted to their care, and are not to be narrowed by restriction or limitations not communicated to the party dealing with them. Breckenridge v. Ins. Co., 87 Mo. 62. Manley was acting within the scope of his authority. 16 Am. and Eng. Ency. Law (2 Ed.), p. 942. (3) Absolute denial of liability under a policy, amounts to a waiver of proofs of loss. Keller v. Ins. Co., 95 Mo.App. 628; Ins. Co. v. Stoddard, 64 N.E. 355. Objection to a proof or accompanying papers, that they were not signed by the proper person, comes too late at the trial. Breckenridge v. Ins. Co., 87 Mo. 62. (4) False statement must be material and required or reference to something required by the policy and prejudicial to the insurer. 13 Am. and Eng. Ency. Law (2 Ed.), p. 344; Marion v. Ins. Co., 35 Mo. 148; Schulter v. Ins. Co., 62 Mo. 236. (5) If there is any discrepancy in the testimony as to amount of loss, this is a question for the jury. They passed on same and found for respondents. Schulter v. Ins. Co., 62 Mo. 236.

GOODE, J. Bland, P. J., and Reyburn, J., concur.

OPINION

GOODE, J.

The defendant issued a policy of insurance for $ 1,000, dated June 2, 1901, insuring plaintiffs' stock of general merchandise contained in a building in the town of Purdy, for one year from that date. The merchandise was consumed by fire February 28, 1902, and as the loss was not settled, this action was instituted to compel payment.

Plaintiffs, Henry and Pearl F. Burge, composed a partnership. Proofs of loss were prepared by B. F. Collins, the company's regular adjuster, and were sworn to by W. D. Burge, father of the plaintiffs, but not a member of the firm. He had been employed in the store, however, and was well acquainted with the value of the stock. The evidence goes to show that Collins, as well as John P. Hubble, the general manager of the western department of the company to whom the proofs were sent, supposed that W. D. Burge was one of the insured and had no information to the contrary until long after the proofs had been received and after the sixty days subsequent to the fire, during which, according to the policy, proofs were to be furnished. The policy required the proofs to be signed and sworn to by the insured, and on that provision the defense is founded that the plaintiffs had no standing in court and the jury should have been directed to return a verdict for the company.

The facts connected with the signing and verification of the proofs by W. D. Burge, relieve the plaintiffs from the forfeiture which otherwise would have been produced by non-compliance with the requirement to furnish proofs of loss signed and sworn to by them or one of them. The policy in suit was written by C. D. Manley, the defendant's agent in the town of Cassville. Manley was acquainted with the plaintiffs and with their father, W. D Burge, had frequently met the latter at the store and knew he was not a member of the firm. One day in March, after the fire, Manley called Pearl Burge by telephone and said the proofs were ready to sign and for him to come to Cassville and sign them. Pearl Burge replied that he was going to Peirce City that day and could not go to Cassville, but that he would send his father if he would do just as well. Manley answered that the father would do as well, and the outcome of the conversation was that the father, W. D. Burge, went to Cassville and verified the proofs. That the affair happened in...