Deitz v. Mound City Mut. Fire & Life Ins. Co.

• Decision Date: 31 March 1866
• Citation: 38 Mo. 85
• Parties: JOHN DEITZ, Respondent, v. MOUND CITY MUTUAL FIRE AND LIFE INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

38 Mo. 85

JOHN DEITZ, Respondent,

v.MOUND CITY MUTUAL FIRE AND LIFE INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Circuit Court.

The facts sufficiently appear in the opinion.

The plaintiff asked and the court gave the following instructions:

1. If the jury believe from the evidence that the plaintiff lost by fire, as charged in the petition, the property therein described, and that said property was of the value of six thousand dollars or more, and that all subsequent insurance was notified by plaintiff to defendant, and assented to in writing by the defendant or its duly authorized agent, then they will find for the plaintiff the amount claimed in the petition, and interest thereon from the 28th day of December, 1858.

2. If the jury find from the evidence that the plaintiff lost by fire, as charged in the petition, the property therein described, and that said property so destroyed was worth over four thousand dollars, and less than six thousand dollars; and that all subsequent insurance was notified by plaintiff to defendant, and assented to in writing by defendant or its duly authorized agent, then they will find for the plaintiff the amount of such loss over four thousand dollars, and interest thereon from the 28th day of December, 1858, not exceeding the amount of the policy.

3. If the defendant consented to receive the insurance premium after the fire, and after notice of such subsequent insurance, a subsequent tender and offer to return this insurance premium can avail it nothing.

4. The authority of the agent is limited, not by the instructions he may receive from his principal, but by the acts which he performs, or undertakes to perform, within the general scope of what third persons may have good reason to believe to be his authority.

5. If Hulse, as the agent of the defendant, undertook to procure the written assent of defendant to such subsequent insurance, and by his acts as such agent held out to plaintiff that he had procured such assent, the defendant is bound by this, and cannot deny such notice.

To the giving of all and each of said instructions the defendant then and there objected and excepted.

The defendant asked and the court gave the following instructions:

1. If the jury find from the evidence that the thirty-six dollars collected as an assessment from the plaintiff was collected by mistake, and that defendant upon discovering the mistake, tendered the said thirty-six dollars back to the plaintiff, then the said original collection of said assessment has no effect upon the issues and merits of this case.

2. If the jury find that on the 30th day of January, 1858, the plaintiff procured the policy read in evidence from the Pacific Insurance Company, for one year from and after the 30th day of January, 1858, until the 30th day of January, 1859, then it became the duty of the plaintiff forthwith to give notice of such insurance to the defendant, and have the same endorsed on the policy sued on, or otherwise acknowledged by the defendant in writing; and if the plaintiff failed to procure such endorsement in writing on the policy sued on, or to procure the said acknowledgment thereof in writing by the defendant, then the policy sued on is void, and the jury ought to find a verdict for the defendant.

3. The statements of Dietz to Hulse, the agent of the defendant, at the time of the application for insurance, unless contained in the said application, are not evidence binding upon the defendant in regard to any facts stated in the application; and any statement in the application different from that testified to by Hulse, the defendant's agent, must control and determine the fact to be as stated in the application; and by the terms of the application, the defendant is not bound by any statements made by the plaintiff to Hulse, the agent, which is not contained in the application as reduced to writing, and read in evidence in this cause.

4. The fact that Dietz notified Hulse, the agent of the defendant, at Weston, of the subsequent insurance in the Pacific Insurance Company, is not a compliance with the conditions of the policy concerning subsequent insurance; and unless the jury can find from the evidence that said Dietz obtained from the defendant an endorsement on the policy sued on, of the said subsequent insurance, or an acknowledgment thereof by the defendant in writing, then the jury will find a verdict for the defendant.

5. The fact that said Dietz could not read or write the English language has no effect or bearing upon the questions at law in this case, but the said Dietz is and was bound to perform all the conditions of the insurance and of the policy as to warranty, and as to the endorsement of subsequent insurance on the policy by defendant, or the acknowledgment thereof in writing, notwithstanding he was unable to read or write the English language.

The defendant asked the following other instructions, which were refused.

1. If the jury find from the evidence that John Dietz signed his name to the application for insurance under the policy sued on, and that it was stated in said application that three thousand dollars insurance in the St. Louis Insurance Company, policy expiring 31st January, 1858, will not be renewed; and if the jury further find from the evidence that the said policy in the St. Louis Insurance Company was renewed from the 1st of January, 1858, to the 31st of January, 1859, then the jury will find for the defendant in this case.

2. The application is a part of the policy of insurance, and the plaintiff having sued on the policy, and having also read the same in evidence, has admitted the genuineness of the said application on which the policy sued on was issued.

3. The renewal of the policy in the St. Louis Insurance Company, read in evidence to the jury, is conclusive evidence of the fact of such renewal, and the jury is bound so to regard it.

4. The issuing of the policy by the Pacific Insurance Company, read in this cause as evidence to the jury, is conclusive evidence of the fact that such policy was issued to the plaintiff, and the jury is bound so to regard it.

5. The collection of the assessment from the defendant, after the fire, is not a waiver of the warranty of the conditions of subsequent insurance as stated in the pleadings.

6. The opinions of Hulse, given after the fire, as to the liability of the defendant or the grounds of the defence, are not any evidence competent in this cause, and the jury is directed to disregard them, and to give no weight to the statements of said opinions.

B. A. Hill, for appellant.

I. The plaintiff, after the making of the policy sued on, violated the conditions of the policy by effecting other insurance in the Pacific Insurance Company, on the 30th day of January, 1858, without giving this defendant notice of such subsequent insurance, and having the same endorsed in writing on the policy. This is a bar to this action. a. The court erred in instructing the jury that notice to Hulse, an agent, without procuring the written consent of the defendant, was sufficient to avoid the condition requiring the endorsement on the policy, or acknowledgment in writing--Hutchinson v. West. Ins. Co., 21 Mo. 97; 14 N. Y. 418; 9 Cush. 470; 11 Cush. 265; 12 Cush, 144; 6 Gray, 169.

b. Hulse never sent any written or other notice to defendant of any subsequent insurance by Dietz.

II. Plaintiff has violated his warranty in this, that by the application, which is made a part of the policy, he warranted that he would not renew an existing insurance in the St. Louis Insurance Company for $3,000, and the plaintiff, notwithstanding his said warranty, did renew said insurance on the 31st January, 1858, in the St. Louis Insurance Company, for $3,000, and did thereby avoid the policy sued on.

The court below erred in refusing to give the instructions asked upon the two foregoing propositions. The court, in refusing to instruct the jury that this warranty not to renew in the St. Louis Insurance Company was not binding on defendant, committed gross error--Nave et al. v. Home Mut. Ins. Co., 37 Mo. 430; 3 Seld. N. Y. 530; 3 Hill, 501. Materiality of warranty not material--2 Denio, 75; Nicol v. Am. Ins. Co., 3 Wood & Min. C. C., U. S. 529 (1847); Murdoch v. Chen. Co. Mut. Ins. Co., 2 Com. N....