Duff v. Fire Ass'n

• Decision Date: 14 May 1895
• Parties: DUFF v. FIRE ASS'N OF PHILADELPHIA.
• Court: Missouri Supreme Court

30 S.W. 1034

129 Mo. 460

DUFF v. FIRE ASS'N OF PHILADELPHIA.

Supreme Court of Missouri, Division No. 1.

May 14, 1895.

INSURANCE — ORAL CONTRACT — PLEADING POLICY.

Where an oral contract of insurance is made, insurer, if he relies for a defense on nonperformance of any of the conditions in the policy issued by him on similar risks, should plead the legal implication that such conditions were part of the contract, and set out the policy. It is not necessary for plaintiff to plead the conditions, and allege performance.

Appeal from circuit court, Knox county; Ben. E. Turner, Judge.

Action by John D. Duff against the Fire Association of Philadelphia. Judgment for plaintiff. Defendant appealed to the court of appeals, where judgment was reversed, and the case was certified to the supreme court. Judgment of circuit court affirmed.

L. F. Cottey and Geo. A. Mahan, for appellant. Geo. R. Balthrope and Chas. D. Stewart, for respondent.

BRACE, C. J.

This cause is certified here from the St. Louis court of appeals, on the dissent of one of the judges of that court from the decision of the majority, reversing the judgment of the circuit court of Knox county in favor of the plaintiff, and remanding the cause for new trial; the dissenting judge being of the opinion that the decision of the majority of the court is in conflict with the previous decision of the Kansas City court of appeals in the case of Lingenfelter v. Insurance Co., 19 Mo. App. 252. The case is reported in 56 Mo. App. 355. The petition is set out in haec verba in the dissenting opinion of Judge Bond, on pages 363, 364, of that report. Its substantive averments are that on the 15th day of June, 1891, the plaintiff entered into an oral contract with the defendant's local agent having authority to make contracts of insurance and to issue policies, by which the defendant, through its said agent; in consideration of the sum of $18 premium to him then paid, promised and agreed with plaintiff to insure his "stock of drugs, candies, nuts, etc., and drug-house furniture," in the sum of $800, against loss by fire, for the term of one year from said date, and to deliver to plaintiff an insurance policy of defendant, binding it to pay plaintiff the sum of $800 in case said property was destroyed by fire within one year from said 15th day of June, 1891; that afterwards, to wit, on the 29th day of June, 1891, all of plaintiff's said "stock of drugs, candies, nuts, etc., and drug-house furniture," and which were of the full value of $800, were wholly consumed by fire; that afterwards, on the 1st day of July, 1891, the plaintiff notified said agent of defendant of said loss by fire of the property so insured, but defendant refused to pay said loss, wherefore he prays judgment, etc. The answer was a general denial. The errors assigned are the action of the court in permitting the plaintiff to introduce any evidence under the petition; the refusal of the court to direct a nonsuit; that plaintiff's instructions enlarge the issues; and that the full amount of the verdict was not authorized by the pleadings and evidence.

The ruling of the court of appeals is disclosed by the following extract from the opinion of the majority of the court, delivered by Judge Biggs: "We are of the opinion that the petition fails to state a cause of action, and therefore the objection to the introduction of any evidence was improperly overruled. For the same reason, and for the further reason that the facts proved were not sufficient to warrant a recovery, the defendant's instruction for nonsuit ought to have been given." The particular in which the petition was held to be defective, as appears from the opinion, is that the plaintiff failed to set forth in his petition the terms and conditions of the policy that was to have been issued in pursuance of the contract stated, and to "aver specifically their performance, or to aver generally that he had performed all the conditions found in such a policy." The court construed the contract sued on to be a contract for present insurance, with the further agreement that thereafter a policy should be issued, and predicated the necessity of the averments aforesaid to constitute a cause of action, on the rule quoted from 1 May, Ins. (3d Ed.) § 23, that "the terms of the agreement for a policy, not specified, are presumed to be those of ordinary policies issued by the same insurer on similar risks," — and the cases cited by the author in support thereof, in note 2 to that section. We agree that the rule as stated in the text is well supported by those cases, but we fail to...