Hearsh v. The German Insurance Co.

• Decision Date: 04 May 1908
• Parties: S. B. HEARSH, Respondent, v. THE GERMAN INSURANCE COMPANY, Appellant
• Court: Kansas Court of Appeals

110 S.W. 23

130 Mo.App. 457

S. B. HEARSH, Respondent, v. THE GERMAN INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 4, 1908

Appeal from Jackson Circuit Court.--Hon. Edward P. Gates, Judge.

AFFIRMED.

Judgment affirmed.

Fyke & Snyder for appellant.

(1) Plaintiff has failed to prove a case, based either upon the particular written contract, stated in the petition, or the oral agreement to insure, indefinitely suggested in the reply. (2) If either or both such transactions occurred there is no proof of contract terms in either case, and nothing by which it could possibly have been determined whether plaintiff performed his contract; if he had one, so as to create a responding obligation upon defendant's part to him. Knights of Honor v. Foster (Tex.), 14 S.W. 922; Eyermann v. Cemetery Co., 61 Mo. 489. (3) According to the pleadings, this suit was based upon a specific written contract, identified by date and number which said contract was afterwards abandoned by plaintiff for an oral agreement to issue a policy (an oral agreement to insure). A plaintiff cannot sue upon one cause of action and recover upon another. Clements v. Yeates, 69 Mo 623. (4) Plaintiff alleges that he has performed all conditions of the policy issued to him, consequently must have accepted it as written, if so, proof of prior transactions leading up to said written policy should have been excluded upon defendants objection thereto; and instruction offered by defendant should have been given. Ijams v. Insurance Co., 185 Mo. 499; Gillum v. Insurance Co., 106 Mo.App. 673; Helm v. Railroad, 98 Mo.App. 423. (5) If the reply is to be understood as charging error or mistake in the preparation of a policy and that plaintiff did not receive the policy for which he applied, for any reason, and the policy sued on, if he is suing upon the written policy, does not represent the agreement, then action should first have been taken to secure its reformation to conform to the agreement before enforcing the alleged obligation. Koffman v. Railroad, 95 Mo.App. 489.

Edwin Camack, Paxton & Rose, and Karnes, New & Krauthoff for respondent.

(1) The affidavit for appeal lacks entirely the statement required by the statute that "affiant believes that the appellant is aggrieved by the judgment or decision of the court," and the appeal ought to be dismissed. Iron Works Co. v. Lead & Zinc Co., 102 S.W. 1104; Railroad v. Powell, 104 Mo.App. 362; Schnabel v. Thomas, 92 Mo.App. 180. (2) Appellant's abstract shows no abstract of the record proper, no trial, no filing of bill of exceptions. Recitals in the bill itself are not sufficient. The abstract ought to be stricken out and the appeal dismissed. School District v. Boyle, 113 Mo.App. 340. (3) Defendant's agent was informed of the prior insurance and this constituted a waiver. Wolf v. Insurance Co., 86 Mo.App. 580, 582; Thompson v. Insurance Co., 169 Mo. 12, 23; Nickell v. Insurance Co., 144 Mo. 420; Millis v. Insurance Co., 95 Mo.App. 211.

OPINION

BROADDUS, P. J.

--This is a suit to recover on a fire insurance policy. The allegations of the petition are: "On the ___ day of February, 1906, plaintiff applied for insurance in the sum of two thousand dollars, on his stock of dry goods, clothing, boots, shirts, ladies' and gents' furnishing goods and notions, then owned by him and located . . . . and said stock of goods being of the value of $ 9,284.58. Said application was made to George W. Clinton, the duly authorized agent of defendant . . . , and on behalf of defendant said agent agreed with plaintiff for a valuable consideration in the way of premium to be paid by plaintiff, to insure said stock of goods against loss by fire, for the sum of two thousand dollars, for a term of one year; and afterwards as plaintiff is informed and believes, said agent wrote out and executed a policy of insurance to comply with said agreement, but said policy was never delivered to this plaintiff, because it was burned by a fire which destroyed the office of said agent. On February 15, 1906, plaintiff paid said agent the premium on said insurance, which said agent accepted and gave plaintiff a receipt on the letter head of said defendant, in words and figures as follows:" (Here follows a copy of the receipt.) The petition alleges the destruction of the goods by fire; that notice of loss was duly given; and that plaintiff requested defendant to furnish him with blank forms on which to make out proofs of his loss, but that defendant failed and refused to furnish such blank forms; and for that reason he has not furnished such proofs of loss.

The defendant's answer admits that plaintiff made application for insurance of his stock of goods as described; that it issued to him a policy insuring the same; and that it filed a true and correct copy of the same as so issued. The answer then proceeds to set out several of the provisions of the policy among which is one to the effect that "This entire policy unless otherwise provided by agreement indorsed hereon or added thereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or otherwise, on property covered in whole or in part by this policy." The answer then proceeds to set up that plaintiff at the time he procured said insurance had other insurance of his property.

The plaintiff replied to defendant's answer to the effect that at the time the contract of insurance was entered into the defendant's agent knew he had other insurance and that it was his duty to so state in the policy, but whether he did so or not, plaintiff has no means of knowing as the policy was burned before it was delivered, "but plaintiff says that defendant cannot avoid its policy by reason of its own error in failing to insert a provision for such concurrent insurance;" and, nor did plaintiff, "having never seen the policy ratify or assent to any such omission."

The plaintiff introduced evidence tending to prove the amount of goods he had at the time of insurance and their destruction by fire; that defendant had knowledge of other insurance and notice of loss and submitted his case to the...