Bushnell v. Farmers' Mut. Ins. Co.

• Decision Date: 06 February 1905
• Parties: BUSHNELL v. FARMERS' MUT. INS. CO.
• Court: Missouri Court of Appeals

85 S.W. 103

110 Mo. App. 223

BUSHNELL v. FARMERS' MUT. INS. CO.

Kansas City Court of Appeals. Missouri.

February 6, 1905.

FIRE INSURANCE — AGENCY — APPLICATION — NEGLIGENCE OF TENANT — INCUMBRANCES — CHANGE OF TITLE — NOTICE TO COMPANY.

1. Where the application for insurance was prepared by the company's agent, and presented to the insured for his signature, who signed it, the agent acts for the company, and it is no defense to an action on the policy that there were incumbrances on the property not mentioned in the application.

2. Though an insurance policy makes an act of gross negligence by the tenant the act of the insured, the mere fact that the tenant set fire to some brush near by, from which the house burned, does not prevent recovery on the policy, in the absence of proof of negligence by the tenant.

3. Where the agent and secretary of the insurance company was notified by insured that he had placed a mortgage on the property, and the company afterward collected assessments from insured, it is estopped, after a loss, to claim that the notice should have been given to the board of directors.

4. A mortgage or deed of trust for security of a debt is not a "transfer or change of title" to the property insured, within a policy of insurance, which would render the policy void if made without the consent of the company.

Appeal from Circuit Court, Livingston County; J. W. Alexander, Judge.

Action on a policy of insurance by Henry Bushnell against the Farmers' Mutual Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

L. A. Chapman and Hudson & Loomis, for appellant. J. M. Davis & Sons, B. B. Gill, and Sheetz & Sons, for respondent.

ELLISON, J.

The defendant is a local farmers' insurance company in Livingston county which insured farm property. It insured the plaintiff's property for a term of five years, and issued to him the policy in suit. Plaintiff prevailed in the trial court. The policy expressly makes the constitution and by-laws of the company a part of the policy itself, but does not include the application, though that omission is of no consequence, as we view the case.

One of the principal points of defense is that at the time of the application, and when the policy was issued, there were one or more incumbrances on the property, and that plaintiff stated in the application that there were none. The reply plaintiff made to that was that the application was prepared by defendant's agent and secretary without the assistance of plaintiff, and that he presented the application to plaintiff with the request that he sign it, which the plaintiff did. We have already ruled more than once that such fact made the application the act of the company, and statements therein the statements of the company itself. Thomas v. Ins. Co., 20 Mo. App. 150; and Ormsby v. Ins. Co., 105 Mo. App. 143, 79 S. W. 733, citing Combs v. Ins. Co., 43 Mo. 148, 97 Am. Dec. 383; Shotliff v. Ins. Co., 100 Mo. App. 138, 73 S. W. 326; and Ins. Co. v. Wilkinson, 13 Wall. 222, 20 L. Ed. 617. The defendant is therefore now disabled from setting up such defense.

It seems that the property was occupied by a tenant, and that the by-laws make any act of gross negligence by the tenant the act of the insured. It further appears that there was evidence tending to show that the house was burned by the tenant setting fire to a pile of brush near by, from which the house caught. In view of this, defendant asked an instruction which declared that if the brush pile was in "dangerous proximity" to the house, and the house took fire from it, there could be no recovery. No question of negligence was embraced in the instruction, and, from defendant's own standpoint, it was properly refused. Men do many things which turn out to be dangerous, in the light of...