Fogle v. Fidelity-Phenix Fire Ins. Co. of New York

• Decision Date: 09 November 1936
• Docket Number: 18536
• Parties: FOGLE v. FIDELITY-PHENIX FIRE INS. CO. OF NEW YORK.
• Court: Kansas Court of Appeals

99 S.W.2d 518

FOGLE v. FIDELITY-PHENIX FIRE INS. CO. OF NEW YORK.

No. 18536

Court of Appeals of Missouri, Kansas City

November 9, 1936

Appeal from Circuit Court, Gentry County; Thomas A. Cummins, Judge.

Action by J. Carl Fogle against the Fidelity Phenix Fire Insurance Company of New York. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Rehearing Denied and Transferred to Supreme Court Dec. 7, 1936.

Hogsett, Smith, Murray & Trippe, of Kansas City, for appellant.

Du Bois, Miller & Beavers, of Grant City, Crossan & Hall, of Kansas City, and F. P. Stapleton, of Albany, for respondent.

SHAIN Presiding Judge.

This is an action for alleged loss by fire under an alleged contract of insurance.

The evidence discloses that C.E. Harding made written application to defendant for insurance against loss by fire in the sum of $5,500 on a dwelling house and household goods and on a number of out buildings situate on a farm in Johnson county Mo. The application called for a mortgage clause in favor of Northwestern Mutual Life Insurance Company, as first mortgagee (or trustee), as interest may appear.

The application for insurance referred to policy as No. 0133466. It is clearly shown by the evidence that defendant did issue to the insured its policy of insurance No. 0133466 and that with the knowledge, consent, and approval of the insured said policy was sent to the aforesaid mortgagee.

Before suit was brought, the insured conveyed his claim to the plaintiff.

The case was tried on an amended petition.

Plaintiff’s original petition, which was introduced in evidence, is a well-stated cause of action suing on policy No. 0133466 and said petition purports to set out in full, property insured, property lost by fire, in fact pleads all necessary averments requisite to recovery.

The policy sued upon was not attached to the original petition. However, all necessary allegations for failure to attach the policy was duly pleaded, to wit: Because the policy was delivered to the holder of the mortgage and that plaintiff was informed and believed that said policy was in the possession of the defendant and that defendant although frequently requested to do so had refused to deliver same to plaintiff.

It appears that the policy in question was produced and exhibited and offered to plaintiff before the cause was tried. When produced, the policy is shown not to have been countersigned by the local agent of defendant as required by section 5902, R.S. Mo. 1929 (Mo. St. Ann. § 5902, p. 4501).

Before the trial, the plaintiff filed an amended petition and issues were duly joined on the amended petition.

The amended petition, with minor exceptions, contained the same general statement of facts as the original petition except as to the clause explaining failure to file said policy No. 0133466. No policy number is mentioned in the amended petition. The amended petition in clause 2, after pleading the contract, closes with the following language:

"Said insurance being for a period of three years, beginning on December 20th, 1931, and terminating December 20th, 1934; that said agreement was evidenced by defendant by its instrument in writing, filed herewith and marked Exhibit ‘A."’

The defendant joined issue by an answer wherein a general denial is made and further pleading defendant specifically denied that plaintiff’s Exhibit A was the contract of insurance and pleaded policy No. 0133466 to be the contract of insurance and pleads the provisions of said policy, attaches same to the answer, and pleads breaches on the part of insured.

Plaintiff for reply made general denial as to all new matter set up in defendant’s answer, without designations as to same, and denied that any written contract of insurance ever existed, as alleged in defendant’s answer. The reply further reiterates full performance on plaintiff’s part of all provisions of insurance contract.

On the issues as above made, plaintiff called as first witness Mr. C.E. Harding, the assured. Mr. Harding testified, and it was admitted, that C.E. Lancaster was agent for the defendant company. He identified the written application for insurance which plaintiff placed in evidence. The application appears to be in due and usual form and was shown to have been signed by Mr. Harding and attested by Mr. Lancaster.

After the introduction of Exhibit 1, the following questions, answers, and proceedings occur, to wit:

"Q. I now hand you, Mr. Harding, Plaintiff’s Exhibit 2, state to the court whether or not you received that exhibit from the agent, C.E. Lancaster? A. Yes, I received that.

"Q. State to the court how you received it. A Brought it to us.

"Q. Delivered it personally? A. Delivered it personally.

"Q. He said it was a duplicate of your insurance contract? A. Yes, sir.

"By Mr. Hogsett: Just a moment. We object. That is calling on the witness to vary the terms of the instrument, which on its face shows it is on a printed form and headed ‘application’ and shows that it is an application and not a policy and no insurance contract. It is a printed form of application and shows on its face. It is an attempt to vary the terms of the printed instrument.

"By the Court: Objection overruled. (To which objection of the court in overruling said objection, the defendant then and there at the time excepted and still excepts.)

"Q. What did he say to you about it being a policy? A. Duplicate of my policy.

"Q. Said it was a duplicate of your policy? A. Yes, sir. That is what he told me.

"Q. What did this agent, C.E. Lancaster, say back on December 20th, 1931, as to when your insurance would take effect? A. That it would take effect right now.

"By Mr. Du Bois: We offer in evidence Plaintiff’s Exhibit 2.

"By Mr. Hogsett: The same objection.

"By the Court: Objection overruled. Considered in evidence. (To which action of the court in overruling said objection, the defendant then and there at the time excepted and still excepts.)"

Exhibit 2 is one and the same as is attached to the amended petition and marked Exhibit A. On inspection Exhibit 2 appears to be a blank form of application identical with Exhibit 1. However, with exception of description of property for which application is expressed, the document consists of an unfilled blank form and is not signed by any applicant for insurance.

There appears indorsed on this exhibit as follows: "Witness, C. E. Lancaster, Holden, Mo."

The plaintiff in the trial denied the existence of a written contract of insurance and the plaintiff’s testimony as a whole falls short of making out a case on a written contract of insurance and under plaintiff’s proof no recovery other than recovery on an oral contract could be had.

Plaintiff’s contention is clearly shown to be that his petition stated a cause of action on an oral contract, that his evidence supported his pleading, and that the judgment is a judgment or recovery on an oral contract of insurance.

During the progress of the trial, defendant on three occasions offered policy No. 0133466 in evidence. In the first offer, the following questions, answers, and proceedings are shown in the record, to wit:

"Q. I hand you what has been marked Defendant’s Exhibit F and ask if you identify that as the policy that came back issued by the Chicago Office on the application just referred to?

A. Yes, sir.

"By Mr. Hogsett: I offer in evidence Defendant’s Exhibit F.

"By Mr. Du Bois: Now if the court please. I would like to ask the witness a preliminary question or two, please.

"By the Court: Go ahead.

"Mr. Du Bois:

"Q. Now, Mr. Lancaster— Mr. Lancaster, you say you are agent of the defendant company down at Holden?

A. Yes, sir.

"Q. The resident agent for the defendant company?

A. Yes.

"Q. Now when you obtained this policy, marked Defendant’s Exhibit F, you did not sign it there as resident agent of the defendant company?

A. I overlooked it.

"Q. And it was not signed as shown by the exhibit there?

A. That is right.

"Q. Mr. Stapleton says I used the word signed. The law says countersigned. You didn’t countersign it?

A. I did not.

"By Mr. Du Bois: Now, if the court please. We object to the introduction of the Defendant’s Exhibit F, for the reason *** that the exhibit shows on its face it is not countersigned by the resident agent, C. E. Lancaster. Under the statute a foreign insurance company can only do business in Missouri through its local agent— licensed agent in the State of Missouri. With such a licensed agent, under our law, an oral contract of insurance can be made, which we say was done in this case between the Hardings and this defendant company. The other method is to have a policy of insurance. There are two methods; one oral and the other is to have a policy of insurance and that form expressly provides that if a policy of insurance be issued, it can only be done by the resident agent countersigning the policy, and that not being done in this case there is no policy § not binding on this plaintiff — not a legal contract in the legal sense of the word and for that reason we object to its being introduced in evidence. If the court desires any authorities, we have them and would be glad to present them.

"By Mr. Hogsett:

"Q. I notice from Defendant’s Exhibit F— ‘In Witness Whereof, the Fidelity-Phenix Fire Insurance Company of New York, has caused these presents to be signed by its President in the City of New York and attested by its Secretary. But this policy, or any endorsements there, or attached thereto, of any kind, shall not be valid until countersigned by the Vice-President or the Manager of the Farm Department At Chicago, Illinois.’ I notice also on its face it is countersigned at Chicago, Illinois, on the 20th day of December, 1931, by I. D. Goss,...