Fulbright v. Phoenix Ins. Co.

• Decision Date: 01 December 1931
• Docket Number: No. 31001.,31001.
• Citation: 44 S.W.2d 115
• Parties: J.H. FULBRIGHT v. PHOENIX INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Appellant.
• Court: Missouri Supreme Court

44 S.W.2d 115

J.H. FULBRIGHT v. PHOENIX INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Appellant.

No. 31001.

Supreme Court of Missouri.

Division Two, December 1, 1931.

Transferred from Springfield Court of Appeals.

REVERSED AND REMANDED.

Williams, Henson & Stone for appellant.

(1) Where one accepts a policy of insurance containing a provision which is equivalent to a declaration that he was the unconditional and sole owner of the building insured and of the fee-simple title to the ground, and if such declarations were not true, then the policy is void from the beginning. Swinney v. Ins. Co., 8 S.W. (2d) 1093; Terminal Ice Co. v. Am. F. Ins. Co., 196 Mo. App. 247; Mers v. Franklin Ins. Co., 68 Mo. 127; Overton v. Ins. Co., 79 Mo. App. 1; Tiffany v. Queen Ins. Co., 199 Mo. App. 36; Park v. Fid. & Cas. Co., 279 S.W. 246; Barnard v. Ins. Co., 27 Mo. App. 26. (2) And it makes no difference that insured never saw the policy previous to the fire. Tiffany v. Queen Ins. Co., 199 Mo. App. 36; Hubbard v. North British Ins. Co., 57 Mo. App. 1. (3) The acceptance of the policy is the equivalent of a warranty of its conditions, although no application for insurance with such warranty was made and filed. Tiffany v. Queen Ins. Co., 199 Mo. App. 41; Overton v. American Central, 71 Mo. App. 1; Mers v. Franklin Ins. Co., 68 Mo. 127; Ayres v. Ins. Co., 66 Mo. App. 288; 26 C.J. 170, 171. (4) The plaintiff was a tenant by the entirety with his wife and therefore was not the sole and unconditional owner, nor was he the owner in fee. An estate by the entirety is as to one tenant only very different from sole and unconditional ownership and is the opposite of fee simple. The very essence of a fee-simple title is that it is an estate of inheritance and on the death of the owner the title descends to his heirs, while in an estate by the entirety, on the death of one tenant the property goes to or remains in the other. Holmes v. Kansas City, 209 Mo. 513; Stifel's Brew. Co. v. Saxy, 273 Mo. 159, 201 S.W. 67. Where assured's title is under a deed making him only a tenant by the entirety with his wife he is not the sole and unconditional owner. Turner v. Home Ins. Co., 195 Mo. App. 138; Monpleasure v. Home Ins. Co., 214 Mo. App. 530. Where the title to real property is held in the name of a husband and wife by a deed of entirety and either the husband or wife has the property insured in his or her individual name, and the policy provides that the assured must be "the unconditional and sole owner in fee" such a policy would be absolutely null and void. Clawson v. Citizens Mut. Fire Ins. Co., 121 Mich. 591, 80 Am. St. 538, 80 N.W. 573; Schroedel v. Humboldt Fire Ins. Co., 158 Pa. 459; Aetna Ins. Co. v. Resh, 40 Mich. 241; Genesee Falls Permanent S. & L. Assoc. v. Fire Ins. Co., 44 N.Y. Supp. 979; Moore v. Moore, 281 S.W. (Ark.) 657; Western Assur. Co. v. White, 280 S.W. (Ark.) 804, 48 A.L.R. 353; 27 C.J. 172, 180. (5) The contract of sale of this land to Alexander, where part of the purchase price was paid or secured and the vendee put in full possession, works both a change in title and possession. The vendee in possession becomes the equitable owner and the vendor is no longer the sole and unconditional owner. When the application was made and the original policy was issued this contract of sale did not exist, but when the present policy was issued as a renewal and on the same application, this contract of sale was outstanding and insured was not the sole and unconditional owner in fee simple. In fact, Alexander was then such owner rather than plaintiff. If the contract of sale had been made after the issuance of the policy, then such change in title and possession would by the terms of the policy have rendered it void. 26 C.J. 176; Manning v. Ins. Co., 123 Mo. App. 456; Hubbard v. Ins. Co., 222 S.W. 886, 205 Mo. App. 316. (6) The plaintiff sought to show a waiver of the provisions of the policy making it void because of the ownership being an estate by entirety and because the contract of sale of the land destroyed the sole and unconditional ownership, by showing knowledge of such conditions on the part of defendant's local agent. As to the title being an estate by the entirety, there is no evidence that defendant's local agent ever knew such fact. Max Fulbright denied having such knowledge as to this title except that he said he might assume that the title was in both husband and wife from other property being deeded to them that way, and he personally thought it made no difference anyway. Of course his thoughts and opinions were not binding on the company and were not communicated to it. In any event his agency for the defendant company extended no further than to take and forward applications for farm insurance and the St. Louis general agent passed on all questions of insurability and issued the policy, if any was issued. The insured then becomes bound by the terms of his policy which he accepts. In case of such a limited or soliciting agent the company is only bound by the knowledge which such agent acquires or acts on in connection with taking and forwarding the application. Then his authority ceases. After-acquired knowledge or knowledge of subsequent conditions cannot be imputed to or be binding on the company. 26 C.J. 298, 299; Kring v. Ins. Co., 195 Mo. App. 133; Hamilton v. Ins. Co., 15 Mo. App. 59; Hawes v. Ins. Co., 7 S.W. (2d) 482. The knowledge of this contract of sale of this land was not had by the local agent till after the renewal of the policy on the old application, and the local agent's authority in the matter had long since ceased. Since, therefore, the local agency of Fulbright & Company had no other authority than to take applications for insurance and forward same to the defendant, and since plaintiff says that no application of his was ever so taken at any time, we fail to see how any knowledge of such agent not communicated to defendant was binding on it. (7) The title, less than a fee simple or less than an absolute and unconditional ownership, which by its provision makes the policy void, is not the title the insured thinks he has or even intended to have, but that which, under the law, he actually does have. The provision is that the policy will be void "if the interest of the insured be other than absolute and unconditional ownership, or if the building be on ground not owned by the insured in fee simple." These are questions of law to be determined by the court, and if under the rules and principles of law, the court must hold that the interest of the insured is, under the law, other than sole and unconditional ownership or his title is not in fee simple, then the policy is made void. This question must be tried out and determined judicially in an insurance case exactly the same as it would in any other case; for instance, in a suit to determine title or in one to declare a resulting trust. There is and can be no question but what the legal title in this case is an estate by the entirety in plaintiff and his wife, nor do we question that if the evidence is sufficient to show an equitable title, sole and unconditional, in plaintiff — an equitable title in fee simple — that will suffice to enable plaintiff to recover. The test is that the court would so decree the title in a suit for that purpose. The evidence, however, must be such that if this was a suit by plaintiff against his wife, or by plaintiff's heirs or devisees against his wife, to determine title or to establish a trust or to reform the deed, the court would or should enter a decree for plaintiff awarding and adjudging the whole title to be in him. No such decree could be entered on the facts shown in this case. The facts here do not show a resulting trust in favor of plaintiff. State ex rel. v. Ellison, 290 Mo. 28; Larrick v. Heathman, 288 Mo. 370; Bender v. Bender, 281 Mo. 473; Haugewood v. Brittin, 273 Mo. 89; Wilhite v. Wilhite, 284 Mo. 387.

Durst & Durst and James L. Hornbostel for respondent.

(1) The provisions of the policy relied upon as a defense to plaintiff's action are not as a matter of law warranties, but at the most only representations, and since the plaintiff made no wilful, intentional, or fraudulent representations, material to the risk, the judgment should be affirmed. Secs. 6233, 6234, 6235, R.S. 1919; Farber v. Ins. Co., 191 Mo. App. 307, 177 S.W. 675; Berry v. Equitable Ins. Co., 263 S.W. 884; Jennings v. National Am. Ins. Co. (Mo. App.), 179 S.W. 791. (2) The provisions of the policy, the violation of which the appellant alleges as a defense to plaintiff's action, were not in fact violated and, therefore, the judgment for plaintiff should be affirmed. (a) The plaintiff was in fact the sole and unconditional owner of the property insured. The plaintiff testified that he paid the entire purchase price of said property; that he did not intend to make said deed in his wife's name as any advancement, settlement, or gift to her; that he did not intend that she should have any interest whatsoever in said property during his life; that he, himself, had received all the rents and profits from said property and that none of same had been turned over to his wife, and that he alone had paid all expenses upon said property in the way of taxes, upkeep, etc. Under such state of facts the husband is the sole and unconditional owner of said property. Monpleasure v. Home Ins. Co., 214 Mo. App. 530, 259 S.W. 815; Turner v. Home Ins. Co., 195 Mo. App. 138, 189 S.W. 626; Brown v. Connecticut Fire Ins. Co., 197 Mo. App. 317, 195 S.W. 62; Andrews v. Andrews, 12 Ind. 348; Taylor v. Miles, 19 Ore. 550, 25 Pac. 144. This doctrine of resulting trust as applied by the Turner and Monpleasure cases is old and well settled law in this State and other jurisdictions, as shown by Turner case and by the recent cases of Thierry v. Thierry, 298 Mo. 25, 249 S.W. 946; Clark v. Clark (Mo. Sup.), 18 S.W. (2d) 77. (b) The plaintiff's interest in the...