Hamilton v. Home Ins. Co.

• Decision Date: 05 March 1888
• Citation: 7 S.W. 261,94 Mo. 353
• Parties: Hamilton et al., Appellants, v. The Home Insurance Company
• Court: Missouri Supreme Court

7 S.W. 261

94 Mo. 353

Hamilton et al., Appellants, v. The Home Insurance Company

Supreme Court of Missouri

March 5, 1888

Appeal from St. Louis Court of Appeals.

Reversed and remanded.

Noble & Orrick for appellants.

(1) The several instructions given for plaintiff were properly given. The first instruction was to the effect that if the jury found, from the evidence, certain facts existed, they constituted Miller agent of the Home Insurance Company (defendant). (a) The question whether certain facts would constitute one an agent is a question of law and was rightly controlled by the court. Thompson Charging the Jury, sec. 10; Tyson v. Rickard, 3 Harr. & J. 109-116; Davis v Harris, 7 Harr. & J. 36; Clark's Adm'r v Marriott, 9 Gill, 331-334. (b) The facts, if found, did constitute Miller agent. The printed instructions of June 11 1880, by Bennett to Miller, were enough to make him such. (c) The whole instruction was but a fair summary of the facts proven chiefly by defendant's own witness. (d) It was not competent for the principal (defendant), by a provision in the policy, to constitute its agent, as to an act already done, the agent of the assured. There is no "magic" in such provision in a policy. Ins. Co. v. Ives, 56 Ill. 402; Ins. Co. v. Cooper, 50 Pa. St. 331; Insurance Co. v. Wilkinson, 13 Wall. 222; Eames v. Ins. Co., 94 U.S. 630. (2) The second instruction for plaintiffs announces the proposition that if Miller was acting as agent for the Home Insurance Company (defendant) in the transaction of its insurance business, and he had notice of the subsequent insurance and made no objection, and took no steps to cancel the plaintiffs' policy, then, the existence of such subsequent insurance is no defence. (a) Where the same agent represents both companies, the original company cannot set up the failure to indorse as a defence. Russell & Co. v. Ins. Co., 55 Mo. 585; Hayward v. Ins. Co., 52 Mo. 181; Howitz v. Ins. Co., 40 Mo. 557; Ins. Co. v. Taylor, 73 Pa. St. 342; Thompson v. Ins. Co., 52 Mo. 473. (b) Notice given an agent while his agency exists, and referring to business coming within the scope of his authority, is notice to the principal. Hayward v. Ins. Co. supra; Wilkinson v. Ins. Co., 2 Dillon, 570. (c) Upon such notice, in the absence of any dissent, the company will be presumed to have waived the written indorsement, and will be bound. Pelkington v. Ins. Co., 55 Mo. 172; Ins. Co. v. Schilleler, 38 Ill. 166; Ins. Co. v. Lyons, 33 Texas, 253. (d) Foreign insurance companies are bound by the acts of their local agents, acting within the scope of their general authority, without any immediate knowledge of the transaction on the part of the company. Franklin v. Ins. Co., 42 Mo. 456; Combs v. Hannibal, 43 Mo. 148; Geib v. Ins. Co., 1 Dillon, 449; Viele v. Ins. Co., 26 Iowa 10; Rowley v. Ins. Co., 36 N.Y. 550; Bartholomew v. Ins. Co., 25 Iowa 507; The Distilled Spirits, 11 Wallace, 356.

Sherwood, J. Ray, J., absent.

OPINION

Sherwood, J.

Action on a policy of insurance issued by the defendant company to the plaintiffs for the sum of twenty-five hundred dollars, on a stock of goods, in Deadwood, D. T. The policy took effect from the sixth of July, 1880. The petition avers that the defendant is an insurance company and corporation acting under and by virtue of the laws of the state of Ohio, having a general agent in the state of Missouri, resident at St. Louis, then declares on the policy; alleges a loss by fire on the eighteenth of January, 1881, proofs of loss furnished, February 23 next thereafter, and prays damages, etc.

The answer of the company avers: "That on the sixth of July, 1880, at Deadwood, plaintiffs, by their agent, L. C. Miller, applied to defendant for insurance, as in the petition mentioned, and defendant accepted the application and delivered the policy sued on, which is made a part of the answer, and says, by the express terms of the policy, it was agreed that if the assured should then have or thereafter make any other insurance on the property, without notice to and consent of the defendant, in writing, indorsed thereon, the policy should be null and void; and if any policy had been procured by any person or persons, other than the duly appointed and authorized agent of the company, such person should be deemed to be the agent of the assured." The answer then avers that, "at the time last aforesaid, the plaintiffs, by their agent, Miller, gave defendant notice that the goods were insured against loss and damage by fire, by the Home Insurance Company; that the terms and amounts were as have been before stated, and that the defendant consented to the said lastmentioned insurance, and indorsed its consent on the policy." The answer then further alleged that, at the time the said policy of insurance was effected, plaintiffs had policies on the same stock of goods in other insurance companies, of which defendant was given no notice, and that, afterwards, on the twenty-eighth day of July, 1880, the plaintiffs, by their agent, Miller, and without notice to defendant, effected other policies of insurance in other companies, upon the same stock of goods, etc.

The reply of the plaintiffs suitably put in issue the material allegations of the answer, and the cause being tried resulted in a verdict for plaintiffs in the sum of $ 2,756.16. The present cause, consolidated with that of the same plaintiffs against the Aurora Fire Insurance Company, was tried before Hon. Amos M. Thayer, and resulted also in a verdict for the plaintiffs in the sum of $ 1,653.70. Both of these causes went on appeal to the St. Louis court of appeals, where the judgments of the circuit court were reversed, and from the judgment in the former case, the plaintiffs have appealed to this court.

Among the general provisions of the policy in question was this one: "It is further agreed that if this policy has been procured by any person or persons other than the duly appointed and authorized agent of this company, such person or persons shall be deemed the agent of the assured, and not of this company; this company shall not be liable by virtue of this policy or any renewal thereof, unless the premium be actually paid to the company." Among the conditions upon which the policy should become void was this: "If the assured shall have or hereafter make any other insurance on the property herein insured, or any part thereof, without notice to, or consent of, this company, in writing hereon." A slip was attached to the policy, as forming a part of the same, dated July 6, 1880, was signed J. B. Bennett, General Agent, and the policy was authorized to be countersigned by the duly authorized agent, and was countersigned, J. B. Bennett, General Agent. Bennett was the general agent of defendant, and resided in St. Louis. He had authority to write, countersign, and issue policies, and appoint local agents.

Hamilton, one of the plaintiffs, testified in substance that: He was a resident of Deadwood, Dakota; a merchant. He testified to the policy of fifteen hundred dollars in the Aurora, which he says he obtained from L. C. Miller, insurance agent at Deadwood; that Miller solicited the plaintiffs for insurance; plaintiffs told him to place four thousand dollars in some good companies, and he, Miller, brought the plaintiffs the policies of twenty-five hundred dollars in the Home, and fifteen hundred in the Aurora; the subject-matter of insurance was their stock of merchandise in their store at Deadwood; they took other insurance subsequent to the policy sued on; procured the subsequent insurance of L. C. Miller, agent of the companies; it was at his solicitation, and not plaintiffs'; it was at different dates; one on the twenty-first of July, probably, for five hundred dollars; one in October, and one in December. "The one that went on in October was to take the place of the thousand that was already on in this defendant; it had been in the Liverpool, London and Globe, and we put it in the Springfield. There was insurance of a thousand dollars on the stock when we took the insurance in the defendant company. When Mr. Miller brought the policies, we read them over and noticed that they did not mention the fact of our having the thousand dollars in the Liverpool, London and Globe, and we called his attention to it; he said it didn't make any difference, as long as he was the agent for both companies, or for all the companies, and the policies came through him. Mr. Miller, of whom we obtained the insurance of the defendant company, was the same Miller of whom we afterwards obtained the insurance in the Springfield Insurance Company, and the other companies that witness refers to. The goods insured were totally destroyed by fire on the eighteenth of January, 1881, the value placed on the stock was about eleven thousand dollars."

The Miller, who is referred to in the answer of the defendant deposed in behalf of plaintiffs, as follows: "Residence, Deadwood; age, 48; occupation, insurance agent; had been agent for five years; got Hamilton & Rockfellow, the plaintiffs, their insurance from Mr. J. B. Bennett, at St. Louis, who was the general agent for numerous companies, this among the others. Solicited insurance from Hamilton & Rockfellow, and my order to Mr. Bennett was in one order for four thousand dollars, written on a blank, I think, without any name of particular company; if it was any, it was the Home; if it was on the printed blank that he furnished, it was the Home of Ohio; sent the order off, and instead of being one policy they sent two -- one of the Home for twenty-five hundred dollars, and one in the Aurora, of Cincinnati, for fifteen hundred dollars. At the time of issuing this insurance to plaintiffs of the defendant company, and in...