Day v. Mechanics' & Traders' Ins. Co.

• Decision Date: 31 October 1885
• Citation: 88 Mo. 325
• Court: Missouri Supreme Court
• Parties: DAY v. THE MECHANICS' & TRADERS' INSURANCE COMPANY, Appellant.

88 Mo. 325

DAY

v.THE MECHANICS' & TRADERS' INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Lafayette Circuit Court.--HON. J. P. STROTHER, Judge.

AFFIRMED.

McKeighan & Jones for appellant.

(1) The court should have sustained appellant's objection to the witness, Winsor's, testimony, in regard to effecting insurance. The policy expressly provided that it should not be changed except “by a written or printed agreement expressed and indorsed on the policy.” Winsor, being a mere special agent of the company, could not change the policy in any other way, except as authorized by the policy itself, and not then unless specially authorized and the authority was shown. Hale v. M. M. F. Co., 6 Gray, 169; Abbot v. Gatch, 13 Md. 314; Worcester v. Hatfield, etc., Ins. Co., 11 Cush. 265; Carpenter v. Prov. Ins. Co., 16 Pet.; Walsh v. Hartford Fire Ins. Co., 73 N. Y. 5; Ins. Co. v. Mowry, 96 U. S. 544. (2) The court erred in permitting the agent to state what was necessary to be done to effect insurance, nor should it have allowed him to state how insurance was effected subsequent to the transaction in controversy. (3) There was no insurance of the shipment in controversy; the minds of the parties never met; the respondent prepared a proposal for insurance which was never received, much less accepted. (4) An open policy itself insures nothing and is not even a contract for any particular shipment; the contract takes effect on any shipment only after all the requirements of the original policy are complied with. Parsons Mar. Insur. 327. Under an open policy, the insurance is the subject of a special and distinct contract to be approved by the company and to be entered in the book attached to the policy. 2 Ins. L. J. No. 2. (5) Where the terms of a policy require an indorsement, it must be done or the company is not bound. Phalto v. Ins. Co., 38 Mo. 248; Edwards v. Ins. Co., 7 Mo. 382. (6) The evidence does not show any modification of the terms of the policy by the company's agent either authorized or unauthorized.

Wallace & Chiles and John S. Blackwell for respondent.

(1) There was no error in the court below in the admission of evidence on the part of the plaintiff. (2) There was no error in the court giving instructions numbered one, two, three, four and five, on the part of plaintiff. Parties may by a subsequent parol agreement upon a sufficient consideration, change or modify the terms of a written contract. Henning v. Ins. Co., 47 Mo. 425; Bunce v. Beck, 43 Mo. 266; Cummings v. Arnold, 3 Met. 486; Moore v. Ins. Co., 16 Mo. 98; Kennebec v. Ins. Co., 6 Gray, 204. (3) The open or running policy, as modified, was both an agreement and standing proposition from defendant to insure plaintiff, on the compliance by plaintiff with certain conditions, and the acceptance by plaintiff of defendant's proposition, to insure by compliance with the conditions, viz.: Mailing notice per said form of application completed the insurance of the shipments of property as made. Taylor v. Merchant's F. Ins. Co., 9 How. 390. (4) All the law requires is due diligence to send the notice within the proper time and it is sufficient to put it properly directed in the post office in season. (5) E. Winsor & Son were defendant's agents having authority to take applications for insurance, and the acts of such agents were the acts of the company. Combs v. Ins. Co., 43 Mo. 148. (6) One dealing with the agent of a corporation has a right to presume, in the absence of knowledge to the contrary, that such agent has general authority. Schmot v. Ins. Co., 2 Mo. App. 339; Insurance Co. v. Wilkerson, 13 Wall. 222. (7) The case was fairly submitted to the jury on correct instructions authorized by the evidence, and as the evidence was conflicting, this court will not weigh it. The jury found for plaintiff, and the judgment, we submit, is for the right party. There was no error in the court below materially affecting the merits of the action; the errors, if any, were in favor of and not “against the appellant,” and the judgment below should be affirmed.

NORTON, J.

This suit was instituted upon an open policy of insurance dated fourteenth of March, 1881, issued by defendant to recover for a loss of wheat, sheep and wool lost by the sinking of the steamboat, “E. H. Durfee,” in the Missouri river on the twenty-third of May, 1881. It is alleged in the petition in substance, that by said policy defendant agreed to insure and thereby insured plaintiff, for any one whom it may concern, lost or not lost, on all shipments of property on board of good seaworthy steamboats in the United States, as endorsed by the authorized agent of defendant at Lexington, Missouri, on said policy or on a book therein, stated to be attached thereto and made part thereof, or for which certificates properly signed by an officer of defendant are issued by the authorized agent of defendant limiting liability of defendant on property to five thousand dollars on one voyage for any one shipper. It is also averred that plaintiff was engaged in buying and shipping wheat, sheep, wool and other commodities; that he transacted this business at Wellington on the Missouri river, which was eight miles distant from Lexington, where E. Winsor & Son, the authorized agents of defendant, lived and transacted the business of said company; that in consequence of the small number of steamboats, navigating the Missouri river, and of those navigating it having no regular days or time for arriving at or departing from the said town of Wellington, plaintiff's only chance for shipping property on steamboats was by having the same at his warehouse at the steamboat landing, and shipping the same on steamboats as they might stop at Wellington in navigating said river; that in view of these facts, and the impossibility of plaintiff's using and making available to himself and defendant said policy by a strict and literal adherence to the terms thereof, in regard to endorsements thereon, or on a book to be attached thereto by the authorized agents of defendant at Lexington, or the issuing and signing of certificates by an officer of defendant, the contract terms and conditions of said policy subsequent to the making and delivery thereof were by the mutual assent, agreement, practice and acquiescence of plaintiff and defendant modified and changed to the extent that plaintiff was thereby permitted and allowed by defendant to make shipments of property under said policy on good seaworthy steamboats, and to give notice in a reasonable time of such shipments according to a form prescribed by defendants, to E. Winsor & Son, agents of defendant at Lexington, either through the mail between Wellington and Lexington in an envelope addressed and directed to said agents at Lexington, or by depositing the same enclosed and addressed to said agents, in the post office at Lexington. It is further alleged that under said open policy so modified and changed, plaintiff on the twenty-first of May, 1881, at the town of Wellington shipped on board the steamboat “E. H. Durfee,” 1021 sacks of wheat of the value of $3,000, fifty-eight head of sheep of the value of three hundred dollars, and five sacks of wool of the value of two hundred and twenty-five dollars, of which shipment he gave defendant notice by depositing the same on twenty-second day of May, 1881, in the post office at Lexington, enclosed in one of the letter envelopes previously furnished to plaintiff by said Winsor & Son, and to be by him used when shipments were made. The property thus shipped, it is alleged, was lost on the twenty-third of May, 1881, by the sinking of said steamboat and this suit is brought to recover the loss, defendant after notice of loss refusing to pay.

The answer of defendant contained a general denial of all the allegations of the petition, except as to their being a corporation, and also sets up in substance that the shipment in question was not indorsed on the policy or on a book attached thereto, neither was there any certificate properly signed by any officer of defendant issued by the agent of defendant. It also states that plaintiff never applied to defendant for insurance on said shipment, and that defendant never accepted said shipment as insured, either under the terms of said policy or upon any other terms. It further alleges in the answer that by the course of dealing between plaintiff and its agents at Lexington, the said plaintiff either mailed his application for insurance at Wellington or delivered it to the said agents, and that said agents on reception thereof, if accepted, endorsed the same on a book kept for that purpose; and that plaintiff's property only became insured upon such reception, acceptance and endorsement, or upon the issuance of a certificate as set forth in said policy.

It is clear under the terms of the policy, that before any property shipped by plaintiff became insured, that such shipment of the property was either to be endorsed by an agent of the defendant on the policy or on a book attached thereto, or for which certificates properly signed by an officer of the company and issued by the authorized agent of the company. And it is equally clear that the shipment made on the twenty-first of May, 1881, on board the steamboat ““Durfee” was not endorsed either on the policy or on a book attached thereto, nor was any certificate issued as provided in the policy. But notwithstanding this it is claimed by plaintiff that after the delivery of said policy it was so modified by the agreement of plaintiff and defendant through their agents at Lexington, that when plaintiff made a shipment of property and gave notice thereof in a form furnished him by defendant, within a reasonable time, either by depositing said notice in an envelope directed to E. Winsor & Son, Lexington, Missouri, either in the post office at Wellington, or by delivering it in person to said agents, or by depositing the...