Edwards v. The Home Insurance Company

• Decision Date: 09 December 1902
• Citation: 73 S.W. 881,100 Mo.App. 695
• Parties: ALBERT N. EDWARDS, Respondent, v. THE HOME INSURANCE COMPANY, Appellant
• Court: Missouri Court of Appeals

73 S.W. 881

100 Mo.App. 695

ALBERT N. EDWARDS, Respondent, v. THE HOME INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 9, 1902

Appeal from St. Louis City Circuit Court.--Hon. D. D. Fisher, Judge.

REVERSED.

Judgment reversed.

Fyke Bros., Snider & Richardson for appellant.

(1) Notice of cancellation to agents or brokers of the insured such as the evidence shows Roeslein & Robyn to have been in this case, is sufficient notice. 16 Am. and Eng. Ency. Law (2 Ed.), p. 974; Standard Oil Co. v. Ins. Co., 64 N.Y 85. (2) The bank therefore was the real beneficiary in the deed of trust and mortgage and the surrender by it of the policies under the circumstances was sufficient to constitute a cancellation thereof. Fire Ins. Co. v. Reynolds, 36 Mich. 502; Ins. Co. v. Wright, 55 F. 455 reversing 53 F. 340; Kooistra v. Ins. Co., 81 N.W. 568; White v. Ins. Co., 93 F. 161. (3) Notice to it was notice to the insured; at all events the defendant had the right to assume that the party in rightful custody of the policy had the right to surrender it. Kooistra v. Ins. Co., 81 N.W. 568; Ins. Co. v. Reynolds, 36 Mich. 502.

John H. Overall, Henry W. Bond and W. G. Schofield for respondent.

(1) "It is only where an oral statement admits only of one interpretation that its effect can become a question of law for the court." In case oral evidence gives rise to different legitimate inferences, it is the exclusive province of the jury to determine which inference should be drawn or which meaning should be adopted. And the same rule applies even to those writings which afford more than one rational inference of their import. Banking Co. v. Blell, 57 Mo.App. 410; Bass v. Jacobs, 63 Mo.App. 393; Mantz v. Maguire, 52 Mo.App. 136; Primm v. Haren, 27 Mo. 205; Judge v. Leclaire, 31 Mo. 127; Belt v. Goode, 31 Mo. 128; Frick v. Railroad, 74 Mo. 542; Smith v. Hutchinson, 83 Mo. 683; Huhn v. Railroad, 92 Mo. 440; Chapman v. Railroad, 146 Mo. 481. (2) An ambiguous oral contract bears that meaning which is shown by the sense in which the parties have acted it out. Wetmore v. Crouch, 150 Mo. 671; Smith Drug Co. v. Saunders, 70 Mo.App. 221; Rose v. Eclipse Co., 60 Mo.App. 28; Sedalia Brewing Co. v. Sedalia W. W. Co., 34 Mo.App. 49. (3) The policy of insurance provided a specific method for the cancellation thereof, and being a written contract, excluded all prior or contemporaneous parol contracts with reference thereto, not embodied in the policy. Tracy v. Iron Works, 104 Mo. 193; Tuggles v. Callison, 143 Mo. 527; Morgan v. Porter, 103 Mo. 135; Bignall v. Mfg. Co., 59 Mo.App. 673; Loan & Trust Co. v. Workman, 71 Mo.App. 275; Bank v. Cushman, 66 Mo.App. 102.

GOODE, J. Bland, P. J., and Barclay, J., concur.

OPINION

GOODE, J.

--Albert N. Edwards, the respondent, is the trustee in a deed of trust executed by the American Base Ball and Athletic Exhibition Company, November 16, 1900, on the buildings and improvements of said company situated in the National League Base Ball Park in the city of St. Louis, Missouri, and as trustee he instituted this action to recover the proceeds of a policy of insurance issued by the Home Insurance Company on said property, which was destroyed by fire May 4, 1901, while the policy was in force, unless it had been cancelled as the appellant says it had.

The answer pleaded among other things the following special defense:

"Further answering defendant alleges it is provided in said policy as follows: 'This entire policy shall be cancelled at any time at the request of the insured or by the company, by giving five days notice of such cancellation. If this policy shall be cancelled as hereinbefore provided or become void, or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that when this policy is cancelled by this company, by giving notice, it shall retain only the pro rata premium.' Defendant alleges that no premium was ever paid by insured or by any one for it for said policy; that on April 17, 1901, defendant duly notified said insured that it would decline to carry said risk and that said policy was cancelled, and it demanded of insured the surrender of said policy; that on April 24, 1901, the said insured did, in compliance with defendant's request, surrender and deliver to it said policy, so that all liability of defendant thereunder, if any ever existed, which it denies, thereupon ceased and determined and plaintiff is not entitled to recover."

A replication was filed containing this new matter:

"Now at this day comes plaintiff, and for replication to defendant's answer, says: That on or about the 24th day of April, 1901, the said policy of insurance was in possession of the National Bank of Commerce, in St. Louis, Missouri; that the agents of defendant in the city of St. Louis, where said bank has its place of business, without any notice to the insured that said policy of insurance had been or would be cancelled, and without the knowledge of plaintiff, received from said bank said policy of insurance, under promise that the said policy should remain in force until the same or some other policy equally good and for the same amount should be returned to said bank; that neither the same nor any other policy in place thereof was afterwards delivered to said bank.

"Further answering plaintiff denies each and every allegation, matter, fact and thing in the answer alleged, not herein expressly admitted, and, having fully replied, asks for judgment as in petition prayed."

M. S. Robison, who is the vice-president and treasurer of said American Base Ball & Athletic Exhibition Company, held the note of the company for $ 48,500, secured by a deed of trust in which the respondent Edwards was trustee, and the insurance policies on the property embraced in the deed of trust were made payable to the trustee as his interest might appear for the further security of the beneficiary. Robison had borrowed $ 15,000 from the Bank of Commerce on his note and to secure that loan had deposited with the bank as collateral said note of the base ball company, with the deed of trust and policies that accompanied it as security, and those documents were held by the bank when the fire occurred.

The facts in regard to the issuance of the policy in suit are these: Robison as vice-president and treasurer of the base ball company was exclusively charged with keeping its property insured. Between the fifth and twelfth of April, 1901, he applied to the firm of Roeslein & Robyn, who were insurance agents and brokers in the city of St. Louis, for insurance to take the place of certain policies which would expire at noon on the seventeenth of that month. They agreed to get new insurance, but encountered considerable difficulty in inducing companies to write the risk and appealed to the agency of Geo. D. Capen & Co., who were agents for certain insurance companies, including the Home, to help them cover the property. That firm expressed doubt as to whether any of the companies they represented would carry the risk, but finally agreed to write policies in some of their companies on the condition and understanding that the clause of the policy requiring five days notice of cancellation should be waived; or, in other words, that on notice of the rejection of the risk by a company, its policy should be cancelled forthwith. This occurred on the twelfth of April and several policies, including the one in suit, were written that day to take effect at noon on the seventeenth. On the twenty-fourth of April, Robison accompanied the base ball club on an eastern tour and got back the evening of the first day of May. On the twenty-fifth of April, Capen & Company received a letter from the general office of the Home Insurance Company in New York, notifying them of its refusal to carry the risk on the base ball company's property and directing them, as the Home's agents in St. Louis, to see that it was relieved of liability on the risk. Capen & Company went immediately to the office of Roeslein & Robyn, which was on a lower floor of the same building where Capen & Company's office was and notified Roeslein & Robyn of the cancellation of the policy. Noel Robyn took said letter written from the Home's New York office, to the base ball park and showed it to Muckenfuss, bookkeeper of the base ball company, Robison, as stated, being out of the city. Robyn also showed Muckenfuss a list of several other companies that had ordered their policies cancelled, saying he wished to take them up. Muckenfuss told him the policies were in the National Bank of Commerce and arranged for Robyn to meet him there at half-past nine o'clock. They met accordingly and transacted the business they had with Cowen the assistant cashier of said bank.

There is a dispute as to what was said when the policies were taken from the bank. Cowen and Muckenfuss say that Robyn stated he wished to withdraw some policies covering insurance on the base ball company's property, handing Cowen a list of them, and promising the latter to keep the insured property covered until new insurance was written.

Cowen swore the bank relinquished some of the policies to Robyn on that condition and with that understanding. Robyn denied this and said he simply asked for and took certain policies, stating that they had been cancelled by the company.

Robison testified he knew nothing about those policies being taken up and cancelled until the second day of May, when his attention was called to it by Muckenfuss. He saw Roeslein & Robyn on the following day in regard to the matter and a conversation occurred which is recited below.

When Robyn got the...