Horwitz v. Equitable Mut. Ins. Co.
| Decision Date | 31 March 1867 |
| Citation | 40 Mo. 557 |
| Parties | HARRY HORWITZ, Respondent, v. THE EQUITABLE MUTUAL INSURANCE COMPANY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
Mason and Voorhis, for appellant.
I. The policy itself as well as the conditions annexed to it, and as well also the covenants of the application for the policy, make the notification of a subsequent insurance; and the endorsement thereof on the policy, or an otherwise acknowlegment by the defendant in writing, a promissory warranty. These stipulations were therefore a condition precedent to any right of recovery on the poliey--Hutchinson v. Western Ins. Co., 21 Mo. 97; Dietz v. Mound City Mut. Fire & L. Ins. Co., 38 Mo. 85; 14 N. Y. 418; 9 Cush. 470; 11 Cush. 265; 12 Cush. 144; 6 Gray, 189.
Had the plaintiff informed the officers of the defendant that he had acquired the subsequent insurance, but failed to present his policy for the endorsement of the same thereon, or have the acknowledgment of consent thereto in writing, the defendant would not be estopped to plead the defence set up in this case. The endorsement upon the policy, or the acknowledgment of the defendant in writing otherwise, was a condition precedent without which the plaintiff could not recover--Carpenter v. The Prov. Ins. Co., 16 Pet. 512; Barrett v. Union Mut. F. Ins. Co., 7 Cush. 178; 1 Phil. on Ins. 477; also cases cited above.
Sharp & Broadhead, for respondent.
This was an action brought to recover the sum of five thousand dollars insurance on a policy, executed and delivered by the defendant to the plaintiff, covering a certain stock of foreign and domestic liquors. The policy contained this clause: “If the said insured or assigns shall hereafter make any other insurance on the same property, and shall not with all reasonable diligence give notice thereof to this company, and have the same endorsed on this instrument or otherwise acknowledged by them in writing, this policy shall cease and be of no further effect.” The defence relied upon was, that, after the issuance of the policy by the company, the insured procured further insurance without notifying the company of the fact or having it endorsed upon the policy.
The facts, as they appear from the record, are, that one Berg, who was the agent for the defendant, went to the plaintiff's office, and the plaintiff informed him that he wanted insurance for $10,000 on his stock of liquors. Berg told plaintiff that his company never took more than $5,000 on any stock of goods, but that he would get the other $5,000 in some other company. Plaintiff then signed the application which was made out by the agent Berg, and the premium was agreed upon for the whole $10,000 if he should effect the other insurance. Berg then took the application and handed it in at the office of the company, and informing the company at the same time that he had agreed to get $5,000 more, as the plaintiff wanted $10,000. To this it does not appear that the company made any objection, but accepted the risk, issued the policy, and received the premium. The next day, in compliance with his agreement, Berg effected the additional $5,000 insurance in the Western Insurance Company, and told the president and secretary of the defendant that he had succeeded in getting the remaining insurance for the plaintiff. The policy issued by the defendant was delivered to plaintiff in an envelope, which he never opened till after the loss occurred by fire, and no endorsement of approval was ever made on it by the defendant.
The defendant asked the court to declare the law to be, that, under the evidence in the case, “it was...
To continue reading
Request your trial
-
Michigan Idaho Lumber Company, a Corp. v. Northern Fire & Marine Insurance Company
... ... ... Smith v. Continental Ins. Co. 6 Dak. 433, 43 N.W ... 810; Hankins v. Rockford Ins. Co. 70 Wis ... Co. v. Jordan, 20 Ann. Cas. 363, note; Thomson v ... Southern Mut. Ins. Co. 90 Ga. 78, 15 S.E. 652 ... Whatever ... Lion F. Ins. Co. 34 Minn. 465, 26 N.W. 455; Horwitz ... v. Equitable Mut. Ins. Co. 40 Mo. 557, 93 Am. Dec. 321; ... Hadley ... ...
-
The Gold Issue Mining & Milling Co. v. Pennsylvania Fire Insurance Co., of Philadelphia
...v. Ins. Co., 42 Colo. 156; Mesterman v. Ins. Co., 5 Wash. 524; Hamilton v. Ins. Co., 94 Mo. 355; Russell v. Ins. Co., 55 Mo. 585; Howitz v. Ins. Co., 40 Mo. 557. Another defense which the insurance company urges is based upon its claim and assertion that Doepke, the president of the respond......
-
Kahn v. Traders Insurance Company
...246, 23 P. 869; Viele v. Germania Ins. Co., 26 Iowa 9; Morrison v. Ins. Co., 69 Tex. 353, 6 S.W. 605; Horwitz v. Equitable M. Ins. Co., 40 Mo. 557; Hayward v. Nat'l Ins. Co., 52 Mo. 181; Thompson v. St. Louis M. L. Ins. Co., 52 Mo. 469; N. E. Fire & M. Ins. Co. v. Schettler, 38 Ill. 166; Ru......
-
Rogers v. Home Insurance Company of New York
...other insurance had been taken did not waive the provision for endorsement upon the policy. But that view was not followed in Horwitz v. Ins. Co., 40 Mo. 557, and it was expressly overruled in Hayward v. Ins. Co., 52 Mo. 181, 195. But each of those cases differed from this in that in them t......