La Font v. Home Ins. Co.

• Citation: 182 S.W. 1029,193 Mo. App. 543
• Decision Date: 15 February 1916
• Docket Number: No. 1666.,1666.
• Parties: LA FONT v. HOME INS. CO.
• Court: Missouri Court of Appeals

182 S.W. 1029

193 Mo. App. 543

LA FONT v. HOME INS. CO.

No. 1666.

Springfield Court of Appeals. Missouri.

February 15, 1916.

Appeal from Circuit Court, New Madrid County; Sterling H. McCarty, Judge.

Action by L. F. La Font against the Home Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Fyke & Snider, of Kansas City, for appellant. R. L. Ward, of Caruthersville, and Thomas Gallivan, of New Madrid, for respondent.

ROBERTSON, P. J.

This is an action upon a fire insurance policy wherein plaintiff claims the amount due him to be $3,600, with interest, and in which a jury returned a verdict for $3,640, principal and interest, and found that the defendant had vexatiously refused to pay for the loss and assessed his damages at $360 and a $300 attorney's fee, making a total of $4,300. Judgment was entered upon the verdict, and the defendant has appealed. The policy is for $4,000 and was issued in consideration of a premium then paid of $18 and an installment note of $72 payable $18 on February 1st of each year thereafter until paid. The policy insured the defendant from January 29, 1913, to January 29, 1918, and also stated that the warranties made in the assured's application was a part of the consideration for its issuance. It is also stated in the policy that the property covered by the policy was owned by the insured and was situated on one acre of land in New Madrid county. The items are designated in the policy as follows:

"$2,500 on two-story frame dwelling house.

"$1,000 on household and kitchen furniture and furnishings of all kinds belonging to assured, or members of his family, all while contained in the above-described dwelling house and summer kitchen.

"$150 on shingle-roof frame building and its additions occupied as a private barn.

"$200 on vehicles while contained in above-described dwelling barn and additions.

"$75 on smokehouse.

"$75 on provisions and produce therein."

The application for the policy signed by the plaintiff stated that he was the owner in fee simple of said property. On December 25, 1914, the fire occurred totally destroying the dwelling house and its contents, except about $50 worth of household goods, smokehouse, and its contents. The contents of the dwelling house plaintiff testified was worth about $2,100, but on cross-examination he testified, after having been reminded of his schedules filed in bankruptcy, as follows:

"Q. So at the time of the fire your household goods and furniture, household stores, wearing apparel, and ornaments of person belonging to you were worth $50? A. That is what I figured them, that is what I figured they would bring if they were sold."

In his schedule filed in the bankruptcy court, and sworn to on December 13, 1913, he stated that his interest in the acre of land was at that time worth $750. At the time the application for the insurance was signed by the plaintiff, when the policy was issued, and at the trial, the plaintiff owned only an undivided half interest in the land upon which the buildings were located. He had previous to the application deeded the other half to his wife. He testified and alleged in his answer that the agent for the defendant prepared the application; that he (the plaintiff) told the agent that his wife had a conditional deed to a one-half interest; that she owned a half interest; that the agent asked if they were living together, and the plaintiff told him they were; and that the agent said, "That is all right, her property is the same as yours." "He wrote the application, and I gave him the money." The plaintiff signed the application without reading it. The agent of the defendant was a witness and denied this testimony of the plaintiff.

At the close of the testimony, the defendant requested and was refused an instruction directing a verdict in its behalf. For the plaintiff the court instructed the jury (No. 1) that if the finding was for the plaintiff, and he was allowed any damages, they should be for "the amount expressed in policy for which said property was insured and which was destroyed by fire, less the value of any and all property saved and not destroyed by fire, in a sum not to exceed the sum of $3,600, and you may allow him interest at the rate of 6 per cent. from the 30th day of March, 1915." This instruction also authorized the damages and attorney's fee in the event the jury believed from the evidence defendant vexatiously refused to pay the loss.

Instruction No. 2, given in behalf of the plaintiff, told the jury if they found from the evidence that the plaintiff had preformed all of the duties required of him by said policy, detailing said conditions, they should find for the plaintiff, provided they found that the defendant waived the condition in the policy that it should be void if the plaintiff was not the sole, unconditional, and absolute owner of the property insured as set out in other instructions.

Instruction No. 3, given for the plaintiff was based upon the theory of waiver, and in substance told the jury, that if the agent wrote the application, that the plaintiff made the statements to him at that time to which we have stated the plaintiff testified, that the plaintiff relied upon said agent writing the answers correctly and did not thereafter read over the application, that the plaintiff paid the premium provided for in the policy, and the defendant retained and had not handed back the same to the plaintiff, that then the defendant has waived the statement in the policy and the answer in the application that the plaintiff was the sole and absolute owner of the property, and that the defendant could not defeat the action on that defense.

In behalf of defendant, the court instructed the jury that the burden of proving waiver rested upon plaintiff, and also that if the defendant had reasonable cause to believe, and did believe, that it had a good defense to all or any part of plaintiff's claim, then no penalty or attorney's fee should be assessed against it.

The court of its own motion instructed the jury that they should not assess his damages at more than one-half of the insurance on the buildings unless that interest exceeded in value one-half the insurance thereon, in which event recovery must be limited to one-half the value of said building, unless the jury found a waiver. Also, the court of its own motion instructed the jury that it was the duty of the plaintiff, "if he could read and write," to have read the application, and if he did not read it, and was not prevented from doing so by some act of defendant or its agent, then he was presumed to know the contents of said application and is bound by the statements contained "therein unless there was a waiver therein made by defendant." These two instructions given by the court of its own motion are the same as instruction No. 6, requested by the defendant and refused with the addition of the provision concerning the waiver.

At the very outset, we are met with the insistence in behalf of the defendant that the plaintiff should not, as a matter of public policy, be allowed to insure the undivided one-half interest in the property owned by his wife and collect the insurance thereon, and that no waiver or conduct on the part of the defendant could legalize such insurance. We concede that proposition to be true, and we have held that a party cannot collect insurance upon property in which he has no insurable interest. Wisecup v. American Ins. Co. of Newark, 186 Mo. App. 310, 172 S. W. 73, and Rutherford v. Sample, 186 Mo. App. 469, 171 S. W. 578.

The defendant also contends that as the defendant was able to do so, but did not read the application, therefore he is bound by its contents, citing the opinions of this court in Ætna Life Ins. Co. v. American Zinc, Lead & Smeltering Co., 169 Mo. App. 550, 563, 154 S. W. 827, which lays down no such rule, and Colley v. National Live Stock Insurance Co., 185 Mo. App. 616, 623, 171 S. W. 663, in which it is stated that the mere claim of signing without reading an application cannot relieve from the effects of statements therein contained. Other cases cited to this point by appellant are as equally wide of the mark.

Beginning with Combs v. Hannibal Savings & Insurance Co., 43 Mo. 148, 150, and 151, 97 Am. Dec. 383, there is a long array of opinions of the Supreme Court and of the Courts of Appeal holding that where the agent of the insurance company incorrectly fills out an application from facts given him by an applicant who can read, and the insured signs the application without reading it, after being given to understand that it was properly filled out, relying upon the statement of the insurance agent, the defendant is estopped from showing any breach of warranty, as to such incorrectly filled in matter, if such application was prepared by its agent with...