Devore v. Franklin Fire Ins. Co. of Philadelphia

• Decision Date: 04 March 1930
• Citation: 25 S.W.2d 131,223 Mo.App. 1162
• Parties: WILLIAM A. DEVORE AND VIOLA DEVORE, RESPONDENTS, v. THE FRANKLIN FIRE INSURANCE COMPANY OF PHILADELPHIA, APPELLANT. [*]
• Court: Missouri Court of Appeals

25 S.W.2d 131

223 Mo.App. 1162

WILLIAM A. DEVORE AND VIOLA DEVORE, RESPONDENTS, v. THE FRANKLIN FIRE INSURANCE COMPANY OF PHILADELPHIA, APPELLANT. ^[*]

Court of Appeals of Missouri, St. Louis

March 4, 1930

Appeal from Cape Girardeau Court of Common Pleas, Cape Girardeau County.--Hon. Oscar A. Knehans, Judge.

AFFIRMED.

Judgment affirmed.

E. L Snider and Oliver & Oliver for appellant.

There is a fatal variance between the pleadings and the proof. In this suit plaintiffs emphasize the fact that they are trying to recover on an oral contract of insurance; whereas the proof shows there never was an intention; nor was any step taken to make an oral contract, but written application was made for a policy to be in writing. Banks v. Cloverleaf Cas. Co., 207 Mo.App. 367; Beswick v. National Cas Co., 206 Mo.App. 67; National Fire Ins. Co. v. Patrick 198 S.W. 1050.

Spradling & Dalton for respondent.

(1) A written application for insurance, is no bar to recovery for loss upon an oral contract pending the issuance of the policy. Prichard v. Insurance Company, 203 S.W. (Mo. App.) 223; Brownfield v. Insurance Company, 35 Mo.App. 54; Lingenfelter v. Insurance Company, 19 Mo.App. 252; Murphy v. Insurance Company, 285 S.W. 772. (2) The fact that a written policy was contemplated was no bar to the existence of an oral contract for present insurance. Shelby v. Insurance Company, 262 S.W. 686, 691; Murphy v. Insurance Company, 285 S.W. 772; Hartford Fire Insurance Company v. Tatum, 5 F.2d 169. (3) Every element necessary to the existence of an oral contract was discussed and agreed upon. Murphy v. Insurance Company, 285 S.W. 772; Hartford Fire Insurance Company v. Tatum, 5 F.2d 169. (4) Vinyard was the local counter-signing agent for a foreign insurance company and the law presumes his authority to make contracts of insurance for his principal. Sheets & Day v. Insurance Company, 153 Mo.App. 633; Prichard v. Insurance Company, 203 S.W. 223; Shelby v. Insurance Company, 262 S.W. 686; Beckinridge v. Insurance Company, 87 Mo. 62; Corrigan v. Underwriters, 1 S.W.2d 845. (5) The local countersigning agent of a foreign insurance company is the alter ergo of the company. Appellant was bound by the acts of Ben Vinyard. He could have waived provision of the application, even if application had said he could not. Ward v. Insurance Company, 244 S.W. 959; Riley v. Insurance Company, 117 Mo.App. 229; Springfield v. Insurance Company, 151 Mo. 90; Thompson v. Insurance Company, 169 Mo. 12; Browning v. Insurance Company, 8 S.W.2d 941. (6) By receiving and retaining respondent's application, note, and money for more than a reasonable time, almost two years, appellant is estopped to say there was no contract for insurance, and the demurrer at the close of all the evidence was properly overruled. Avery v. Insurance Company, 295 S.W. 509; Calwell v. Insurance Company, 245 S.W. 602; Hawes v. Insurance Company, 7 S.W.2d 479; Benanti v. Insurance Company, 9 S.W.2d 673. (7) The oral contract of insurance is presumed to be on the usual and ordinary terms of policies issued by the company. Duff v. Fire Association, 129 Mo. 460; Vining v. Franklin Fire Insurance Company, 89 Mo.App. 311; National Liberty Insurance Company v. Milligan, 10 F.2d 483; Swinney v. Insurance Company, 8 S.W.2d 1090. (8) The fact that appellant received respondent's application for insurance and accepted and retained his note and money for the premium for more than a reasonable time prior to the fire (two months) presumes an acceptance. Hawes v. Insurance Company, 7 S.W.2d 479; Wilson v. Insurance Company, 300 S.W. 551; Andrus v. Insurance Association, 168 Mo. 151; Rhodus v. Insurance Company, 156 Mo.App. 281. (9) The demurrer at the close of the whole case was properly overruled under the law applicable to demurrers. First: The demurrer must be overruled if the case could be submitted to the jury on any theory. Roques v. Railroad, 264 S.W. 474; Conley v. Railroad, 255 S.W. 424. Second: The demurrer to the evidence admitted every fact which the evidence tended to show in the slightest degree. City of St. Louis v. Nash, 260 S.W. 985. Third: All inferences favorable to the plaintiff from the whole evidence must be considered and all unfavorable inferences rejected. Stewart v. Light Company, 241 S.W. 909; Buesching v. Gaslight Company, 73 Mo. 219. Fourth: In passing on the demurrer only that evidence most favorable to the plaintiff should be considered. Montague v. Railroad, 264 S.W. 813; Stewart v. Furniture Company, 259 S.W. 875; White v. Pupillo, 263 S.W. 1011. Fifth: In passing on the demurrer the court will disregard defendant's evidence unless it strengthened plaintiff's case. The written application and the petition of plaintiff in the former case are parts of defendant's (appellant's) evidence, they were offered by the appellant. Watson v. Marble Company, 290 S.W. 649; Combs v. Standard Oil Company, 296 S.W. 817; Find v. Realty Company, 296 S.W. 838; McNabb v. Niagara Fire Ins. Co., 22 S.W.2d 364.

SUTTON, C. Haid, P. J., and Becker and Nipper, JJ., concur.

OPINION

SUTTON, C.

This is an action on a fire insurance contract. The trial, with a jury, resulted in a verdict and judgment for plaintiffs for $ 3293.33. Defendant appeals.

Defendant assigns error here upon the refusal of its instruction in the nature of a demurrer to the evidence. The ground of the assignment is that there was a fatal variance between the pleadings and the proof, in that plaintiffs base their action on an oral contract of insurance, whereas the proof shows there was never any intention to make an oral contract, but a written application was made for a policy to be in writing.

On April 14, 1927, plaintiffs, at the solicitation of Russell Deal, made application for insurance against loss or damage by fire, lightning, tornado, and windstorm, by the defendant, in the amount of $ 3000 on their dwelling house, $ 200 on their smokehouse, and $ 800 on their barn, located on a tract of ninety-two acres, in survey 2271 near Whitewater, in Cape Girardeau County. It appears that Russell Deal in taking the application was acting as a subagent of Ben Vinyard, who was the duly appointed and licensed local countersigning agent of defendant. There appears to be no question that Vinyard was authorized to sell insurance, collect the premiums, and issue and countersign policies for defendant, which is a foreign insurance company duly licensed to do business in this State. When deal solicited and took the application for the insurance, he collected one-half the premium, amounting to $ 65, in cash, and took a note for the balance. The application and note were signed by William A. Devore. The application recites that the insurance applied for is for a term of three years commencing on the 14th day of April, 1927. The note recites that it is for value received in policy dated April 14, 1927, issued by defendant. The application also states that the insured property is mortgaged to the Union Central Life Insurance Company, but does not state the amount of the mortgage debt. Vinyard had previously furnished the application blank to Deal, and advised him that he would take care of him on the commission. After the application was taken by Deal, he delivered it and the note to Vinyard, who sent them to the defendant. Vinyard told Deal the insurance was bound, and it was agreed between them that Deal might hold the money received in part payment of the premium, and turn it over to Vinyard, less commissions, as soon as the policy was received. A few days after the application was taken, William A. Devore called on Vinyard at his office in Cape Girardeau, and had a conversation with him about the insurance. Concerning this conversation, Devore testified: "Mr. Vinyard said the policy hadn't come. He said he was looking for it any day. He said I was insured right then. He said I needn't be uneasy, if anything happened I would get my money. He said he had the note, and had sent it to...