Finley v. Continental Ins. Co.

• Decision Date: 06 December 1927
• Docket Number: No. 19776.,19776.
• Parties: FINLEY, Lincoln County Treasurer, v. CONTINENTAL INS. CO. OF CITY OF NEW YORK.
• Court: Missouri Court of Appeals

299 S.W. 1107

FINLEY, Lincoln County Treasurer, v. CONTINENTAL INS. CO. OF CITY OF NEW YORK.

No. 19776.

St. Louis Court of Appeals, Missouri.

December 6, 1927.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by M. C. Finley, Treasurer of Lincoln County, Missouri, against the Continental Insurance Company of the City of New York. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Leahy, Saunders & Walther, of St. Louis, F. D. Wilkins, of Louisiana, Mo., and A. L. Anderson, of St. Louis, for appellant.

Grover C. Huston and Derwood E. Williams, both of Troy, for respondent.

BECKER, J.

This is a suit brought on behalf of Lincoln county, Mo., against the Continental Insurance Company of New York, to recover unearned premiums on three alleged policies of insurance claimed by plaintiff to have been issued by the defendant. The petitions in each instance are conventional. The answers contain general denials, and in addition deny, under oath, the execution or issuance of the policies described by plaintiff in his petition, and further specifically deny ever having received the sums alleged to have been paid by plaintiff as premiums on the policies. The several replies allege that one L. L. Stephens was the agent for the defendant at Troy, Mo., duly authorized to solicit insurance and to countersign, issue, and renew, and to deliver policies and collect premiums therefor; and that the said Stephens, on the 5th day of February, 1925, directed, authorized, and empowered one Robert S. Martin, in his name and on behalf of the defendant, to issue, countersign, and deliver to plaintiff, defendant's policies of insurance, and directed Martin to collect the premiums due thereon ; that Martin did, under said direction and authorization, issue and countersign, in the name of Stephens, such policies and delivered them to plaintiff and collected the premiums therefor; that said acts were done with the full knowledge and consent of the said Stephens and were afterwards duly ratified and confirmed by him.

The replies further allege that the said Stephens afterwards mailed the daily report on each of said policies to the western department of the defendant at Chicago, Ill.; that he also attached the agent's copies of such daily report to the defendant's policy register kept at Stephens' office at Troy, and that all of this was done with full knowledge of all the facts; that the said Stephens afterwards, with full knowledge of the facts, accepted from said Martin checks for the premiums due the defendant after the deduction of the agent's commission of 25 per cent. The replies then allege that by reason of the premises the defendant was estopped from denying the issuance of the policies and from denying it had received the premiums on said policies, and prays judgment in accordance with the prayer of the petition.

The case was tried to a jury, who returned a verdict in favor of the plaintiff on each of the three counts, and from the resulting judgment the defendant in due course appeals.

It is here seriously contended on the part of the insurer that the court erred in overruling the demurrers offered at the close of plaintiff's case and again at the conclusion of the entire case.

In light of the testimony as it is presented to us in the record here, and under the rulings of law applicable to the questions involved, it has only been after a most careful consideration of the record that we have arrived at the conclusion that the demurrers were well ruled.

It is conceded that L. L. Stephens, of Troy, Mo., was the duly accredited agent of the defendant in the state of Missouri at the time in question, with the usual authority to issue, countersign, and deliver policies of insurance, and to collect the premiums thereon and that each of the three policies here in question contained the usual standard form provision that:

"This policy is made and accepted subject to the foregoing stipulations and conditions, and the following stipulations and conditions printed on back hereof, which are hereby specifically referred to and made a part of this policy, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto; and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto; and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached. * * *

"In witness whereof, this company has executed and attested these presents; but this policy shall not be valid until countersigned by the duly authorized agent of the company at Troy, Mo."

Each of the three policies was countersigned, "L. L. Stephens, Agent," each of which signature was written by Robert S. Martin, and that said Martin in fact delivered the policies to the county court and received and cashed a county warrant for a sum which aggregated the full premium for the three policies, but that Martin did not actually pay or turn over to Stephens, or the defendant company, any part of the money he thus received.

The record further indicates that the county court of Lincoln county decided to reinsure the county courthouse and its contents against loss or damage by fire, tornado, windstorm, and cyclone. The court determined the amount of insurance that it would carry upon the courthouse and its contents and made its intention known to the local insurance agencies. On the morning of February 5, 1925, James Linehan, proprietor of the Linahan Insurance Agency, Wesley Scholemann, proprietor of the Peoples' Insurance Agency, L. L. Stephens, agent for the Northern Insurance Company and the Continental Insurance Company of New York, and Robert S. Martin met with the county court. They were informed by the court as to the total amount of insurance desired, and the court requested them to make a division of the insurance among themselves.

Linahan, Scholemann, Martin, and Stephens retired and held a conference, and in a short time returned and informed the court that they had made a satisfactory division of the insurance among themselves.

After the meeting Scholemann, Martin, and Stephens walked down the street toward the offices of Scholemann and Stephens, which consisted of two rooms connected by a doorway. Scholemann occupied the front room and Stephens occupied the rear room. As they walked down the street together Martin explained to Scholemann that he did not represent an insurance company at that time and asked Scholemann if he might place his insurance with one of Scholemann's companies. It was then agreed that Martin would write his insurance in the Star Insurance Company, represented by Scholemann. This was about 11 o'clock in the morning.

At this juncture Stephens, agent for the Northern Insurance Company and the Continental Insurance Company, came into Scholemann's office. In a discussion which followed Stephens stated that he had two companies, and that he needed but one, and that he had thought of giving up the Continental. It was then explained to Stephens that Martin did not represent any insurance company at that time. After some conversation between Martin and Stephens, it was agreed by Stephens that Martin could place his insurance in the Continental Insurance Company, and, according to Martin, Stephens then got the policies of the Continental Insurance Company from a cabinet in his office and laid them on a table, stating to Martin that it would be all right for him to write the policies in the Continental, and that he would place his insurance with the Northern Insurance Company. Stephens then left the office.

Martin further testified: That he wrote his insurance on the Continental policies which Stephens had delivered to him; that he also filled out the policies in the Northern Insurance Company for Stephens' quota of the insurance; that after he had written up the Continental policies he signed the name, "L. L. Stephens, Agent," to the policies; that he then placed the policies and the daily reports of the Continental Insurance Company, together with the policies and the daily reports of the Northern Insurance Company on a table in Stephens' office; that Stephens returned to his office between 2 and 3 o'clock that afternoon. At this time Martin and Scholemann were in the office, and one Evertt Hudson came in afterwards. That when Stephens returned to the office, the Continental policies and the Northern policies, together with the daily reports of the Continental Insurance Company and the daily reports of the Northern Insurance Company, were on a table in Stephens' office; that Stephens...