Burgess v. Mercantile Town Mutual Insurance Company

• Decision Date: 02 October 1905
• Citation: 89 S.W. 568,114 Mo.App. 169
• Parties: BURGESS, Respondent, v. MERCANTILE TOWN MUTUAL INSURANCE COMPANY, Appellant
• Court: Missouri Court of Appeals

89 S.W. 568

114 Mo.App. 169

BURGESS, Respondent, v. MERCANTILE TOWN MUTUAL INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

October 2, 1905

[Copyrighted Material Omitted]

Appeal from Jefferson Circuit Court.--Hon. Frank R. Dearing, Judge.

AFFIRMED.

STATEMENT.

This is an action on a policy of insurance against loss by fire. The case was tried to the court without the intervention of a jury. The following facts were developed in evidence adduced on the part of the plaintiff, and stand uncontroverted by the defendant.

Defendant is a town mutual insurance company, organized in pursuance of the laws of and doing an insurance business in this State with its home office in the city of St. Louis. J. W Daugherty was at the time of the loss, and continued to be at all times herein mentioned, its secretary and general manager. Plaintiff procured the policy herein sued on from one Boyer, a local agent for defendant, whereby the defendant company insured his dwelling house, situated at Crystal City or Festus, in Jefferson County from said date, June 14, 1899 for three years, until June 14, 1902, in the sum of $ 1250 against loss or damage by fire. The policy was concurrent with another policy of the Continental Insurance Company of New York on the same property. On October 14, 1901, and while said policy was in force, the subject of the insurance was totally destroyed by fire. Said policy contained the following clause requiring notice and proof of loss:

"If a fire occur the insured shall give immediate notice of any loss thereby in writing to this Company . . . and within sixty days after the fire, unless such time is extended in writing by this Company, shall render a statement to this Company at its general office, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire . . . and the loss shall not become payable until sixty days after the notice ascertainment, estimate and satisfactory proof of the loss herein required have been received by this Company, at its general office including an award by appraisers when appraisal has been required."

Boyer, the agent who had written the risk, was a witness to the fire and immediately notified the Company of the total loss under the policy. On the following day, plaintiff saw Boyer and spoke to him about notifying the Company. Boyer informed him that he had already done so. Plaintiff thereupon gave no additional notice. On October 26th, Mr. Daniels, adjuster for the Continental Insurance Company, came upon the scene and had some negotiations with plaintiff as to the loss sustained by his company and requested the plaintiff to meet him a few days later at the home office of the defendant company in St. Louis. In accordance with this arrangement, plaintiff came to St. Louis on the day agreed, October 29th, and to the office of the defendant company, where he met Mr. Daugherty, secretary and general manager of the defendant company, and Mr. Daniels, the adjuster for the Continental Insurance Company, whereupon Mr. Daniels and Mr. Daugherty retired into a room and figured on the plaintiff's loss for about twenty minutes and finally, when they were ready for plaintiff, called him into the room. They were then figuring on what they would offer plaintiff on account of his loss, and Mr. Daniels of the Continental Insurance Company, in the presence of Mr. Daugherty and with his consent and acquiescence, offered plaintiff $ 2,000 in full for the loss he had sustained under both policies, that of the defendant and the policy of the Continental Insurance Company. Plaintiff, in answer to the question: "Who made you the offer?" replied; "Mr. Daniels, and Mr. Daugherty sanctioned it; he told Mr. Daniels and Daniels told me what they would give. . . . Mr. Daniels made the offer and Mr. Daugherty was right there and ordered it made." The plaintiff insisted that his loss was much larger than the amount offered and declined to accept. Daugherty said it was enough and Daniels said it was fair. He further testified as follows:

"Q. I will ask you further about the conversation between these gentlemen and yourself in St. Louis; what was the disagreement between you about? A. Well, they claimed the depreciation in value, which I didn't think was right, and I thought it was worth more than they thought it was. . . . They claimed a depreciation in value of 33 1-3 per cent.

"Q. That was the only question between you? A. Yes, sir."

About two weeks after this interview between plaintiff and defendant's general manager in the defendant's office, when the only question between the parties was the value of the property and the amount the plaintiff should be compensated for his loss, the defendant, by its general manager and secretary, wrote and mailed to plaintiff the following letter, which was duly received by him:

"EVERY POLICY GUARANTEED BY THE DEPOSIT WITH THE STATE OF MISSOURI.

MERCANTILE TOWN MUTUAL INSURANCE COMPANY.

(Incorporated April, 1896.)

Rialto Building, St. Louis.

Directors:

L. F. Klostermann

E. H. Englemann

David A. Glenn

Earnest Marshall

J. W. Daugherty

William Hirsche

Aug. Schivelbine

Henry L. Rozier

Aug. Bierwirth

E. H. Englemann, President.

J. W. Daugherty, Secretary.

"St. Louis, Mo., November 11, 1901.

"Mr. T. L. Burgess,

"Hillsboro, Mo.

"Dear Sir:--

"The matter of our loss having been placed in the hands of our adjuster, reply to yours of the 6th inst. has been delayed on account of his absence from the city.

"We confess that we are somewhat surprised at the context of your letter. In replying to this you will understand, of course, that we are speaking for ourselves alone, and not for the 'Continental.' You will understand further that this latter company will doubtless reply to you, as we have forwarded your letter to them.

"You say you 'Cannot see how you people can expect me to accept less than the full insurance; you know the property was worth more than it was insured for, and, of course, I expect the full amount. ' In the adjustment of all losses the question of how much the company must pay depends entirely upon your contract, which is the policy of insurance. In your policy you will find that we are compelled to pay the sound value of the property at the time of the fire less reasonable depreciation for age and subject also to any special conditions which may be attached thereto.

"We therefore expect you to accept just what this contract calls for, whether it is the full insurance or not. As to our knowing 'the property was worth much more than it was insured for,' permit me to say that you are entirely at variance with the facts, as the figures which were presented to you at the time of your visit were exactly what we know the property to be worth. You frankly acknowledge that the house could be built for less than it cost you. It is only reasonable that you should allow for wear and tear, and your policy especially provides for this phase.

"We think, therefore, that you have taken a position which is not well founded in fact, and we believe upon consideration that you will see the correctness of this statement.

"There are a number of features to which we might call your attention to further demonstrate the incorrectness of your stand, but we believe you to be a man of clear discernment, and that you will advise us of your readiness to adjust this loss with us according to your agreement.

"Yours truly,

"J. W. DAUGHERTY,

"Secretary and Manager."

A few days later, about November 16, plaintiff received a letter containing blank forms of proofs of loss in which letter Daugherty said: "You are hereby notified that this company requires of you a strict compliance with all the conditions and stipulations of said policy, especially in relation to rendering to said company a particular account of said alleged loss." The concluding paragraph of this letter states that the company neither "admits nor denies liability" under the policy. Plaintiff did not fill out and return said proofs of loss to the defendant for the reason, he said, that he did not think it was necessary as they had already discussed it and therefore no proof of loss was made until about December 18, after the time limit therefor had expired.

Mr. W S. Wittler, an attorney at law, who was employed by the plaintiff in St. Louis to look after the matter, called on Mr. Daugherty in his office within a day or two after November 29. He testified that he told him he had this claim and would like to take it up with him, to which Mr. Daugherty replied: "Very well, and further said he thought they had done all they wanted to do in making an offer to Mr. Burgess and that the only difficulty was as to the amount; that he considered the claim an honest one, he did not think there was any fraud in it, but he thought Mr. Burgess was trying to get more than his property was worth and if he (Wittler) could convince him it was worth more than the figures showed, he would be willing to take the matter up with him; that he knew what the property was worth and that he and Burgess had figured it over together in the office. He said he had taken the matter up with Mr. Burgess and Mr. Burgess had said to him, after they had figured the matter over, that the figures appeared to look right on the $ 1,000 basis, but he was satisfied his property cost and was worth more than that. Mr. Wittler asked Mr. Daugherty what he thought and he replied that he did not think it was worth more than $ 1,000. Mr. Wittler failed to convince Mr. Daugherty, however, that the property was worth more than Mr. Daugherty claimed it was and there the negotiations ceased. Mr. Wittler again called upon Mr. Daugherty in...