Ecton v. Continental Ins. Co.

• Decision Date: 02 July 1888
• Citation: 32 Mo.App. 53
• Parties: D. W. ECTON, Respondent, v. THE CONTINENTAL INSURANCE COMPANY OF NEW YORK, Appellant.
• Court: Kansas Court of Appeals

32 Mo.App. 53

D. W. ECTON, Respondent, v. THE CONTINENTAL INSURANCE COMPANY OF NEW YORK, Appellant.

Court of Appeals of Missouri, Kansas City.

July 2, 1888

Appeal from Cass Circuit Court. --HON. D. A. DEARMOND, Judge.

AFFIRMED.

The case is stated in the opinion.

Railey & Burney, for the appellant.

(1) It was improper to admit the testimony of the witness Mahan as to his visit to plaintiff's farm and his conversation with plaintiff concerning the adjustment of the loss in controversy. The statements or declarations of a party or his agent in the nature of an offer to compromise or settle are inadmissible as evidence. Smith v. Shell, 82 Mo 215. By his own statement Mahan was shown to have been a mere local agent and not an adjuster. He did not represent defendant in the conversations related in evidence; indeed it appears, from the evidence, that the company did not know of his going and had not then heard of the loss. His acts and statements were not a part of the res gestae, and not binding upon defendant. McDermott v. Railroad, 87 Mo. 286; S. C., 73 Mo. 516; Golson v. Ebert, 52 Mo. 260; Scoville v. Glassner, 79 Mo. 449; City ex rel. v. Raynard, 80 Mo. 185; Caldwell v Henry, 76 Mo. 254; Hamilton v. Berry, 74 Mo. 176. The evidence of Mahan's visit to plaintiff's farm and his conversation about the settlement of the loss was not competent to show a waiver of notice, because they took place sixteen days after the loss, and the time within which the notice should have been given had already elapsed. " If the notice is too late there is an end of the matter. The want of such a notice cannot be supplied." Ins. Co. v. Kyle, 11 Mo. 278; Brink v. Ins. Co., 70 N.Y. 593. (2) The court should have sustained the demurrer to plaintiff's evidence on the ground that there was no evidence whatever from which the jury could find that plaintiff, within fifteen days after his loss, gave defendant, at its office in Chicago or New York, written notice thereof. The court should not submit to the jury a question upon which there is no evidence. White v. Chaney, 20 Mo.App. 389; Charles v. Patch, 87 Mo. 450.

George B. Strother, for the respondent.

(1) There was no error in judgment, ruling and instructions of the circuit court in this cause. Any notice that will induce a company to examine the loss is sufficient. Wood on Insurance, 700; 50 Ill. 120. (2) If there is a scintilla of evidence, it should go to the jury; therefore, the court committed no error because there was abundance of evidence to go to the jury. Baum v. Fryrear, 85 Mo. 154; Brewington v. Jenkins, 85 Mo. 60; Buesching v. Gaslight Co., 73 Mo. 219. In Fisher v. Railroad, 23 Mo.App. 206, the court quoted with approval, the following passage: " In passing upon a demurrer to the evidence, the court is required to make every inference of facts in favor of the party offering the evidence, which a jury might, with any degree of propriety, have inferred in his favor." Buesching v. Gaslight Co., 73 Mo. 219. The court below committed no error in letting the testimony of witness Mahan go to the jury. (3) Because Mahan was an agent of defendant and was acting under instructions from state agent Fleming--his acts were those of the company, and were binding upon the company. Bank v. Gilstrop, 45 Mo. 420. It was a part of the res gestae. Meagher v. Railroad, 14 Mo.App. 599. (4) Witness Wilson stated that he notified them (meaning the Continental Insurance Company) of the loss; that, of itself, would settle the question of notice. (5) John Wilson testified that he was the agent that took the application, having a subagent to do the work. And later the said Wilson stated that Ecton, the plaintiff, came into his office and told him that his wheat had burned, and directed said Wilson to notify the company. Wilson stated that " I learned from these men, my sub-agents, that the property was in Cass county. * * * I forwarded the application to the company and received this policy. * * * A few days after the fire Ecton came into the office and notified me of the loss, and I sit down in Ecton's presence and wrote a letter to inform them of the loss. I generally stamp my letters and mail them, but I have no recollection of stamping and mailing this one. I think I did, because of my habit. I never saw the letter afterwards." If that is not enough evidence to go a jury, then it would be well to do away with the jury system altogether. It was sufficient; the company regarded it as a sufficient notice. Because its adjuster came to Pleasant Hill and there deputised Mahan to settle or investigate the loss; Mahan proceeded to the place where the loss occurred, and there told plaintiff that the company would do what was right about the loss; in other words, would pay the loss. Mahan did not make any objection as to notice of loss. That was all that was necessary. It will be noticed that company's witnesses " were conspicuous for their absence." They do not contradict Wilson. The court properly instructed the jury and the verdict of the jury should not be disturbed.

Boggess & Moore, also for the respondent.

(1) All the testimony was objected to substantially because it was " " irrelevant, immaterial, and incompetent." These objections were not good, because the testimony did relate to, and tend in some degree to support, the issues arising in the cause. If it was incompetent for any reason, that reason ought to have been specifically stated to the court. As that was not done, the objection was invalid, and the exception must fall with the objection. 1 Greenl. Evid., secs. 51 a and 53; Margrave v. Ausmuss, 51 Mo. 561; Clark v. Conway, 23 Mo. 438; Martin v. Travers, 12 Cal. 244; Satterlee v. Bliss, 36 Cal. 161. (2) The issue to be proved was the fact of notice of the loss being given to the company. The evidence shows that at least three of the company's agents were put in motion, by reason of plaintiff's loss, and his efforts to give defendant notice--some of them, certainly, within a few days, and all of them, within fifteen days after the loss. These facts were averred and proved, not for the purpose of showing that Mahan had power to adjust the loss, or to bind the company by any suggestion of his as to what the company might or would do, but solely for the purpose of assisting to prove the ultimate fact of notice. This evidence tended to establish that fact, and hence was relevant, material, and competent. As it so tended, it was the duty of the court to submit it to the jury under proper instructions for their consideration. (3) Those instructions asked by appellant and refused by the court were properly refused. Those three which the court did give, taken together, fairly presented all the law to the jury, and, indeed, are more favorable to the appellant than it was entitled to ask or have. (4) It was not necessary that Wilson should disclose the fact to the company that he was acting for the respondent in notifying said company of said loss. All that could be required of the respondent was to give the company notice, in writing, etc., of his loss within the terms of the policy; and if the evidence shows that he gave, or caused, or procured notice to be given to the company, he discharged his duty, and fixed his rights in that respect. Qui facit per alium, facit per se. May on Insurance, sec. 152. (5) It is neither certain nor probable, from the evidence adduced, that Wilson's letter was addressed or mailed by him to Fleming. He had no business relations with, or knowledge of, Fleming up to that time. His communications were all with the company at Chicago. He wrote a few days after the fire. Fleming did not put Mahan in motion until about the first of September, over fifteen days after the fire. The notice by Wilson went to the company at Chicago; it was sent thence by the company to Fleming. The company made the insurance; respondent paid the premium, and sustained the loss. The company ought to have produced Fleming and Wilson's letter at the trial. (6) The judgment ought to be affirmed.

HALL J.

This was an action on a policy of fire insurance. The only defense that need be noticed was, that plaintiff failed to give notice of the loss within fifteen days thereof to the defendant at its office in Chicago or New York, as required by the policy. The only questions presented here are as to the action...