Fiske v. Royal Exchange Ass. Company

• Citation: 75 S.W. 382,100 Mo.App. 545
• Parties: ELLA M. W. FISKE, Respondent, v. ROYAL EXCHANGE ASSURANCE COMPANY, Appellant
• Decision Date: 25 May 1903
• Court: Court of Appeals of Kansas

75 S.W. 382

100 Mo.App. 545

ELLA M. W. FISKE, Respondent, v. ROYAL EXCHANGE ASSURANCE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 25, 1903

Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.

Judgment affirmed.

Fyke Bros., Snider & Richardson for appellant.

(1) Where a double employment exists and is not known to both principals no recovery can be had against the party kept in ignorance. De Esteiger v. Hollington, 17 Mo.App 382; 40 Mich. 376; 71 Penn. St. 250; Story on Agency, 31-210; Bradley v. Insurance Co., 30 Mo.App. 372; 57 Kan 576. (2) An agent can not represent antagonistic interests and if he seeks to do so the contract can be avoided by either party. May on Insurance, vol. 1, p. 125; People's Ins. Co. v. Paddon, 8 Brad. 447; Vol. 2, Insurance Digest (French), p. 384; Insurance Company v. Allen, 80 Ala. 571.

Richard B. Wilcox for respondent.

(1) "The law will protect the companies against frauds, misrepresentations and breaches of warranty, but it will not lend its aid to support defenses founded upon their own errors or omissions, when they have received the premium, delivered a complete and valid policy, and lain by without objection until a loss has happened; it will not help them to accomplish a fraud." Parsons v. Ins. Co., 132 Mo. 583; Franklin v. Ins. Co., 42 Mo. 456 at 461. (2) The defendant's answer makes the invalidity of the policy hinge upon the pendency of the Park proceedings without written permission endorsed on the policy. It now sets up for the first time its claim of double agency. Defendant can not try the case on one theory in the Circuit Court and on another in this court. Tomlinson v. Ellison, 104 Mo. 105; Evans v. Kunze, 128 Mo. 670; State ex rel. v. Chick, 146 Mo. 645. (3) The defense of double employment must be affirmatively pleaded. An affirmative defense must be clearly and distinctly set forth. This defense, so far as pleading is concerned, is not unlike that of champerty, gaming, usury and the like. Reese v. Garth, 36 Mo.App. 641; Hall v. Harris, 145 Mo. 614. (4) Till payment made according to the provisions of the charter, there is no transference of title to the city, no divestiture from the citizen. Title in fee remains in owner till payment of damages has been made. State ex rel. v. Hug, 44 Mo. 120; Green v. Railroad, 82 Mo. 657; In re Paseo, 78 Mo.App. 518; Martin, Ex'r v. St. Louis, 139 Mo. 246; Plum v. Kansas City, 101 Mo. 525.

OPINION

BROADDUS, J.

On the 26th day of July, 1900, defendant by its policy of that date insured one Harrison R. Gregory against loss by fire to the amount of $ 750 upon his dwelling situated in what is known as the Penn Park Valley District in Kansas City, Missouri. The plaintiff sues as mortgagee, to whom a loss by fire under the terms of the policy was to be paid.

Defendant's answer admits the execution of the policy, but seeks to avoid liability because Harrison Gregory was not the sole and unconditional owner, and that a change took place in the title of the insured to the property insured, which by its terms rendered the policy void, viz: "That before said policy was issued proceedings had been commenced by Kansas City to condemn said property for park purposes under the charter of Kansas City, to which the insured, the beneficiaries named in the deed of trust claimed to be held by plaintiff, were parties. Said proceedings by due course of law resulted in a judgment in favor of Kansas City, condemning said property for park purposes. In and by said proceedings said insured, trustee and beneficiaries filed a disclaimer, disclaiming any right to remove the improvements from said property, and the verdict of the jury in said case was rendered assessing the damages for taking said property, including the improvements, all of which proceedings had been had before said policy was issued, and while said proceedings were pending in the Supreme Court said policy was written; that in said cause in the Supreme Court, and before the fire mentioned in the petition, said judgment of the Jackson county circuit court condemning said property and assessing the value of said improvements was affirmed; that afterwards, in compliance with said judgment said condemnation money so assessed by the jury in said cause was paid into court by Kansas City for the use and benefit of said insured and the plaintiff. That consent by this defendant that the interest of the insured might be other than unconditional and sole ownership, or for any change in such interest, was not provided by agreement endorsed or added to said policy, wherefore defendant says plaintiff is not entitled to recover," etc.

The following facts were agreed upon, viz.:

It is admitted that the defendant executed the policy of insurance sued on, on the date mentioned in the petition and said policy of insurance may be read in evidence and shall be considered a part of this agreed statement of facts. That plaintiff is the owner and holder by endorsement of a note secured by a deed of trust on the house insured and the lot on which it was situated. That the allegations of the petition as to the destruction of the house by fire, the notice to the company and proofs of loss are true.

The property described in said policy of insurance was situated in what is known as Penn Valley Park, in Kansas City, Jackson county, Missouri. Before said policy was issued proceedings had been commenced by Kansas City to condemn said property for park purposes, under the charter of Kansas City, to which the insured, the trustees and beneficiaries named in the deed of trust were parties. At that time plaintiff was the owner of said note. Said proceedings in due course of law resulted in a judgment in favor of Kansas City condemning said property and other property for park purposes. In said proceedings said insured, trustee and beneficiaries filed a disclaimer, disclaiming any right to remove the improvements from said property and verdict of the jury in said case was rendered assessing the damages for taking said property including the improvements, for the sum of six hundred and seventy-five dollars. Thereafter and while said...