Doerr v. National Fire Insurance Company of Hartford

• Citation: 285 S.W. 961,315 Mo. 266
• Decision Date: 30 July 1926
• Docket Number: 25156
• Parties: William H. Doerr v. National Fire Insurance Company of Hartford, Appellant
• Court: United States State Supreme Court of Missouri

285 S.W. 961

315 Mo. 266

William H. Doerr v. National Fire Insurance Company of Hartford, Appellant

No. 25156

Supreme Court of Missouri

July 30, 1926

Transferred from Springfield Court of Appeals.

Reversed.

Hogsett & Boyle and Howard Gray for appellant.

(1) The trial court erred in refusing appellant's peremptory instruction in the nature of a demurrer at the close of all the evidence. (a) The lock warranty was a reasonable and valid requirement, and the respondent's failure to comply with it rendered the policy null and void as far as the theft of the automobile was concerned, Billet v. Ins. Co., 129 A. (N. J.) 209; Ins. Co. v. High, 153 Ark. 156; Frick v. Ins. Co., 184 S.W. 1161; Brooks v. Ins Co., 11 Mo.App. 349; Loehner v. Ins. Co., 17 Mo. 255; Mers v. Ins. Co., 68 Mo. 131; Glendale Woolen Co. v. Ins. Co., 21 Conn. 19; First National Bank v. Ins. Co., 50 N.Y. 45. (b) Before the forfeiture could be waived the acts or conduct relied upon must have been such as to work an estoppel, and the dissenting opinion in the Court of Appeals properly holds that no such showing was made. Bolan v. Ins. Co., 58 Mo.App. 231; Dezell v. Casualty Co., 176 Mo. 253; Lowenstein v. Ins. Co., 227 Mo. 100; Armstrong v. Ins Co., 130 N.Y. 560; Chandler v. Ins. Co., 180 Mo.App. 394; Gerhart Realty Co. v. Assurance Co., 86 Mo.App. 596; Colonius v. Ins. Co., 3 Mo.App. 56; Boren v. Brotherhood of Railroad Trainmen, 145 Mo.App. 137; Cohn v. Ins. Co., 62 Mo.App. 277; Keet-Roundtree D. G. Co. v. Ins. Co., 100 Mo.App. 504; Adj. Co. v. Ins. Co., 1 Fed. (2nd Series) 800; Gibson v. Ins. Co., 159 N.Y. 418; Ins. Co. v. Wolff, 95 U.S. 333; Dolan v. Ins. Co., 88 Mo.App. 674; Gibson v. Ins. Co., 82 Mo.App. 519; Walker v. Knights of Maccabees, 177 Mo.App 54; Tinsley v. Ins. Co., 199 Mo.App. 704; Ceresia v. Mutual Aid Assn., 211 S.W. 83; Shusterman v. Ins. Co., 253 S.W. 95. (c) The acts and conduct of appellant's agents did not mislead respondent, or cause respondent to change his position to his prejudice, and did not put him to any trouble or expense; hence there were no elements of estoppel, and therefore no waiver. Authorities supra. The alleged promise by the adjuster to pay if the car was not found within sixty days was a mere statement of intention which could be changed at any time, and was without effect upon the situation of the parties. Gerhart Realty Co. v. Assurance Co., 86 Mo.App. 600; Card v. Ins. Co., 4 Mo.App. 424; Colonius v. Ins. Co., 3 Mo.App. 56; Richards v. Ins. Co., 83 Mich. 508, 21 Am. St. 611; Joye v. Ins. Co., 32 S.E. 446. (d) The majority opinion in the Court of Appeals (holding that no element of estoppel need be present in order to create a waiver) is not sustained by the cases which it cites, in each of which cases there were present one or more of the elements of estoppel. Bolan v. Fire Ins. Co., 58 Mo.App. 225; Pace v. Ins. Co., 173 Mo.App. 485; Myers v. Casualty Co., 123 Mo.App. 682; Travis v. Ins. Co., 179 S.W. 766; Ramsey v. Ins. Co., 160 Mo.App. 236; Keys v. Council of Security, 174 Mo.App. 671; Dye v. Ins. Co., 227 S.W. 1062. (2) Appellant's requested instructions did not waive its demurrer to the evidence or concede the sufficiency of respondent's evidence on the question of waiver. After the refusal of appellant's general peremptory instruction, appellant requested specific instructions withdrawing the waiver question as a matter of law; and when these instructions were likewise refused, appellant was entitled to fall back to its second line of defense and meet plaintiff upon the ground forced upon it by the action of the trial court. Everhart v. Bryson, 244 Mo. 516; Kenefick-Hammond Co. v. Fire Ins. Society, 205 Mo. 294; Torrance v. Pryor, 210 S.W. 432. (3) Appellant was not obligated to tender back the premium paid for the policy. Although the policy was forfeited as to the respondent, it remained valid as to the mortgagee, and appellant in fact paid the mortgagee; wherefore appellant was entitled to retain the premium. Appellant did not learn of the ground of forfeiture until after the loss, in which circumstances tender is not required. 14 R. C. L. 1193; 26 C. J. 326. Harwood v. Ins. Co., 170 Mo.App. 304. The respondent is insisting that the policy is not forfeited as to him but is still in force; hence tender is not required. Senor v. Ins. Co., 181 Mo. 113; Ice Co. v. Ins. Co., 196 Mo.App. 253.

Hackney & Welch for respondent.

(1) The lock clause of the policy was merely a promissory warranty or a condition subsequent. The breach thereof would not render the policy void but voidable, and to rely upon same it was incumbent upon the appellant to promptly declare a forfeiture on account thereof. 32 C. J. 1276, 278, 280, 281, 1291; Gold Issue Mining Co. v. Ins. Co., 267 Mo. 604; Travis v. Continental Ins. Co., 179 S.W. 768. (2) Waiver of a breach of warranty, or a condition subsequent, is a matter of intention and not of estoppel. Lance v. Royal Ins. Co., 259 S.W. 535; Schwab v. Brotherhood of American Yeomen, 264 S.W. 690; Life Assn. v. Vaden, 261 S.W. 324; Holt v. National Life & Accident Ins. Co., 263 S.W. 524. (3) By agreeing to pay the loss, by requesting the respondent's return to the adjuster's office from time to time, lulling the respondent into a feeling of security and by failing to declare forfeiture with reasonable promptness, the appellant is barred from asserting such defense, even on the ground of estoppel.

Lindsay, C. Seddon, C., concurs.

OPINION

LINDSAY

The plaintiff sued on a policy for $ 1400, insuring his automobile against loss by theft. The insurance was granted under and pursuant to an open policy held by the Consolidated Bond & Security Company, which took plaintiff's note secured by a chattel mortgage upon the automobile. The insurance was payable to the security company and to plaintiff as their interests might appear. Plaintiff had judgment for $ 723.83, the difference between the total sum of the insurance and the amount of the unpaid indebtedness secured by the chattel mortgage upon the automobile, the defendant having purchased the note so secured, before this suit was brought.

The judgment was affirmed by the Springfield Court of Appeals, 253 S.W. 39, but there was a dissent, and the cause was certified to this court at the request of the dissenting judge, and under his view that the opinion of the majority was in conflict with certain decisions of the St. Louis Court of Appeals, and of the Kansas City Court of Appeals.

The paramount question in the case, the question upon which the court divided, is whether the plaintiff made a case for the jury upon the issue, that defendant had waived the breach of a certain condition of the policy. The policy provided that in consideration of the reduction of premium granted, it was made a condition that the insured would at all times maintain a certain named and approved locking device in working order on the automobile and that the insured would not leave the automobile without locking the device, for which allowance of reduction was made; otherwise, the policy should be null and void as far as the theft of the automobile was concerned. The plaintiff maintained the locking device required, which locked the gear shift of the car, but admitted that on the night the car was stolen, he had run it into his garage and after turning the key and locking the device, he had left the key therein. The door of the garage was locked by him, and the garage had been entered by breaking that lock.

The plaintiff's case, under his Instruction 1 authorizing a recovery, was submitted upon the theory that after turning the key of the device, he had left the key therein, but that, through certain acts, and conversations had between him and defendant's agents, as submitted by the instruction, there had been a waiver by defendant of the breach of the policy. The purchase of the note by defendant was not included in the instruction as an act admitting liability or showing a waiver of the breach, and the court instructed the jury that they were not to consider the fact that the defendant had satisfied the interest of mortgagee, as an admission of liability. This, because of certain provisions of the policy.

The defendant had asked for a peremptory instruction at the close of the plaintiff's case, and at the close of the whole case. The defendant also asked for an instruction that there was no evidence of waiver on the part of defendant or its agents of any of the terms of the policy, which was refused.

The court gave for defendant an instruction which told the jury that plaintiff's act of turning the lock and leaving the key therein, was not a compliance with the lock warranty in the policy. Thus, the plaintiff founded his right to recover upon the claim of waiver on the part of defendant of the breach of the policy. The defendant having asked the specific instruction that there was no evidence of such waiver, did not lose the right to persist in that contention, because afterward, being forced to do so, it joined in submitting that issue to the jury. [Torrance v. Pryor, 210 S.W. 432, 433; Everhart v. Bryson, 244 Mo. 516, 517; Kenefick-Hammond Co. v. Fire Ins. Society, 205 Mo. 294.]

The plaintiff lived in Kansas City and the automobile was stolen there. He testified that upon discovery of the theft, he reported it to Mr. Norman, who, plaintiff said, was the general agent who had countersigned and delivered the policy. Norman instructed him to go to the Midwest Adjustment Company, as plaintiff stated it -- "to have my loss adjusted." This adjustment company was a corporation of which a Mr. Garrett was manager, and for it also a Mr Campbell was an investigator and adjuster in the settlement of claims under insurance policies. The business of the company was the...