Harland v. The Liverpool & London And Globe Insurance Co.
| Decision Date | 22 November 1915 |
| Citation | 180 S.W. 998,192 Mo.App. 198 |
| Parties | ELLERY W. HARLAND, Respondent, v. THE LIVERPOOL AND LONDON AND GLOBE INSURANCE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Linn Circuit Court.--Hon. Fred Lamb, Judge.
AFFIRMED.
Judgment affirmed.
Fyke & Snider for appellant.
C. M Kendrick for respondent.
--Suit on a policy of fire insurance for $ 900 on a stock of undertaker's goods. The case was tried before the court without a jury. Plaintiff recovered judgment for the amount of the policy and defendant appeals.
Defendant set up that the policy was void because of plaintiff's fraud in the matter of the issuance thereof and in having the goods insured for that amount.
Plaintiff was defendant's agent in the town of Bucklin. He bought the stock in controversy at administrator's sale for $ 425 or $ 450. He was one of the appraisers who had appraised the stock for the administrator, and this appraisement fixed the value thereof at $ 555.35. After purchasing the stock and adding thereto about $ 155 worth of goods and selling therefrom only one casket (price not shown), he, on May 26, issued to himself a policy of $ 900 on the stock. He did not inform the company that he had appraised the property, nor did he tell the company the amount of such appraisement nor the price he paid. He did, however, report to the company by sending the form of the policy to the company. In the policy plaintiff's name, as insured, was written "Ellery W Harland" while his name, as countersigning agent, was written "E. W. Harland." This last was the name used in his appointment as agent and in the correspondence between him and defendant.
Defendant claims that it did not know plaintiff was insuring himself; and that good faith required that he not only disclose this fact but that he also disclose to the company the amount at which he had appraised the stock and the price he had paid therefor; that section 7030, Revised Statutes 1909, forbids the company insuring a stock for more than three-fourths of its value, and that plaintiff, being the agent of the company, was the one upon whom the company relied to determine the value and fix the amount of insurance in accordance with that value as the statute required; and that plaintiff not only failed in his duty aforesaid as an agent, but also violated section 7030 by insuring, for defendant, property at an amount nearly double what he should have insured it at.
Sometime before plaintiff took out the policy, one of defendant's general agents, who visited and also established agencies, suggested to plaintiff that he ought to take out insurance on the stock, to take the insurance with defendant and he could thereby save the amount of his own commissions by writing his own policy. We think that this fact, coupled with the similarity of the two names in the copy of the policy sent defendant, together with the further fact that there was no evidence that defendant was misled by the fact that one name was "Ellery W." and the other merely amply supports the inference that the defendant did know that the two names were the same. The correspondence from the company after the fire, in reference to the claim, makes no complaint because the agent had insured himself, and this is an added circumstance tending to show that the company knew he had issued the policy to himself.
But defendant says the agent insured the property for $ 900 without telling his principal he had bought it for less or that he had, under oath, appraised it at much less; that section 7030, Revised Statutes 1909, forbids the insurance of property for more than three-fourths of its value, and, as he was the one whose duty it was to act for defendant in seeing that it was not insured for more than three-fourths of its value, he has violated said section and the policy is void on that account.
The evidence tends to show that plaintiff, at the time he talked with the agent above mentioned, showed him the stock, and the latter spent a half day or more looking at it and talking; that he, plaintiff, told him the stock invoiced at seven or eight hundred dollars but that he had bought it for less at administrator's sale. There was no evidence that it did not invoice at that figure nor that it was not worth $ 900. Indeed, there was testimony that the stock was, in reality, worth $ 1000 to $ 1100. Of course, these facts did not absolve plaintiff from his duty, as an agent, to make a full disclosure of what he did pay and all the facts concerning the stock. Doubtless he should have told just what he paid for the stock and what he appraised it at, thereby supplying all the facts and circumstances necessary for defendant to know in deciding for itself whether it would accept the insurance or would accept it to the amount of $ 900. We do not mean to say that defendant was not entitled to avoid the policy because plaintiff made a partial disclosure of the facts sufficient to put defendant's general agent on his guard. It was plaintiff's duty to go further than this and make a full disclosure of all the facts. An agent must serve the interests of his principal with the utmost fidelity. [1 Mechem on Agency (2 Ed.), secs. 176-180 and secs. 1188-1191; 1 Clark & Skiles on Agency, secs. 404-406.] This rule applies to agents of insurance companies. And a policy issued by an agent to himself without a full disclosure of all the facts to his principal, is voidable at the option of the latter. [Mercantile Ins. Co. v. Hope Ins. Co., 8 Mo.App. 408; Wilberger v. Hartford Ins. Co., 72 Miss. 338; Arispe Co. v. Capital Ins. Co., 133 Iowa 272, 110 N.W. 593; Zimmermann v. Dwelling House Ins. Co., 110 Mich. 399, 68 N.W. 215; Greenwood Ice Co. v. Georgia Home Ins. Co., 72 Miss. 46, 17 So. 83; Ritt v. Washington Ins. Co., 41 Barb. 353; Rockford Ins. Co. v. Winfield, 57 Kan. 576, 47 P. 511; Phoenix Ins. Co. v. Hamilton, 110 Ga. 14, 35 S.E. 305; Ramspeck v. Pattillo, 104 Ga. 772, 30 S.E. 962; London Ins. Co. v. Turnbull, 86 Ky. 230, 5 S.W. 542; N. Y. Ins. Co. v. Pro. Ins. Co., 14 N.Y. 85.] Defendant was, therefore, entitled to avoid the policy if it had placed itself in a position to do so.
But the trouble is that defendant has not done this. It came into court...
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