Byrne v. Farmers Mut. Fire Ins. Co.
| Decision Date | 02 April 1940 |
| Docket Number | No. 24970.,24970. |
| Citation | 138 S.W.2d 705 |
| Parties | BYRNE v. FARMERS MUT. FIRE INS. CO. OF ROCK TP., JEFFERSON COUNTY. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; John J. Wolfe, Judge.
"Not to be reported in State Reports."
Action by James Byrne against the Farmers Mutual Fire Insurance Company of Rock Township, Jefferson County, on an alleged fire insurance contract. From a judgment on an involuntary nonsuit, plaintiff appeals.
Affirmed.
A. E. L. Gardner, of Clayton, and Terry, Terry & Terry, of Festus, for appellant.
R. E. Kleinschmidt, of Hillsboro, for respondent.
BENNICK, Commissioner.
This is an appeal by plaintiff from the judgment entered upon an involuntary nonsuit which was taken by plaintiff when the court sustained defendant's demurrer to the evidence at the close of plaintiff's case.
The action is upon an alleged oral contract of insurance whereby defendant, Farmers Mutual Fire Insurance Company of Rock Township, Jefferson County, Missouri, purportedly insured plaintiff, James Byrne, against loss by fire or lightning, in the amount of $4,000, to his flour mill and its contents located at Byrnesville, in Jefferson County.
The evidence showed that on October 22, 1935, plaintiff gave a written application to one Schoen, a soliciting agent for defendant, which application was for the issuance of a policy insuring the mill and its contents as stated above, and which contained, among its several recitals, the specific notation that "this mill is not insured until flue is built and secretary is notified". Along with his application, plaintiff paid to Schoen the sum of $6.25 as a first fee, which, according to the terms of the receipt given plaintiff by Schoen, was to be returned to plaintiff if a policy was not issued.
The flue was concededly not built, due to unfavorable weather, with the result that no policy was issued to plaintiff by defendant. However plaintiff offered, but was denied the right, to prove that on a subsequent occasion prior to the loss, Schoen, the soliciting agent, had stated to him orally that his mill was insured, though advising that the insurance would not continue for long unless the flue was built.
On January 22, 1936, the mill and it contents were totally destroyed by fire, and shortly thereafter plaintiff made demand upon defendant for payment of the amount of the alleged insurance, which demand defendant refused upon the ground that no policy had been issued. Schoen thereupon tendered back to plaintiff the first fee of $6.25, which he himself had apparently held in his own possession pending the issuance of a policy, and which plaintiff refused to accept.
So far as the pleadings are concerned, suffice it merely to say that plaintiff, in his petition, alleged the oral contract of insurance made by defendant, through its agent, upon the payment by plaintiff of the first fee of $6.25; that defendant, in its answer, denied the authority of Schoen, its soliciting agent, to have bound it by an oral contract of insurance; and...
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