Jones v. Horn

• Decision Date: 01 February 1904
• Citation: 104 Mo. App. 705,78 S.W. 638
• Parties: JONES v. HORN.
• Court: Missouri Court of Appeals

78 S.W. 638

104 Mo. App. 705

JONES v. HORN.

Court of Appeals at Kansas City, Missouri.

February 1, 1904.

INSURANCE—FOREIGN COMPANY — WANT OF LICENSE — MISREPRESENTATION BY AGENT — PERSONAL LIABILITY — INSOLVENCY — RIGHT TO ATTACK FINDING—PRESUMPTION.

1. Insurance companies are prohibited from doing business in Missouri unless they comply with certain requirements, among which is a deposit with the insurance commissioner of a fund for the security of policy holders. When the requirements are complied with, a certificate authorizing the company to do business is issued by the commissioner, without which, under Rev. St. 1899, § 7989, no company is authorized to do business in the state. A copy of such certificate is to be held by every agent or solicitor. Section 8001 makes guilty of a misdemeanor any agent acting without first obtaining such certificate. Held, that the agent of a foreign company which had not been admitted to do business in the state was not personally liable for misrepresenting to an applicant that the company was so admitted, thereby inducing him to take out insurance.

2. An appellee who insists that the findings and judgment be affirmed is precluded from denying the truth of a finding.

3. No presumption of the insolvency of a foreign insurance company arises from the fact that it has not been authorized to do business in the state.

Appeal from Circuit Court, Cass County; Wm. L. Jarrott, Judge.

Action by H. E. Jones against W. A. Horn. Judgment for plaintiff, and defendant appeals. Reversed.

C. W. Sloan and C. W. Hight, for appellant. R. T. Railey and Fyke Bros., Snider & Richardson, for respondent.

BROADDUS, J.

The plaintiff in the year 1900 was engaged in the mercantile business, and owned two drug stores—one at Cleveland and the other at Kingsville, Mo.—during which time defendant was engaged as a fire insurance agent at Harrisonville, Mo. On July 16, 1900, the defendant issued and delivered to the plaintiff a policy of insurance executed by the Mercantile Insurance Company of Chicago, Ill., insuring plaintiff's stock of drugs, fixtures, etc., in his store at Kingsville. Prior to this date, however, the defendant had issued a policy of insurance on plaintiff's goods at Cleveland. At one time appellant saw plaintiff at his store in Kingsville, when it was arranged that defendant should insure his goods at that place. He placed plaintiff's insurance in a company which was not doing business in small town like Kingsville, but the company canceled the policy, whereupon defendant proffered to insure him in some good company. He then returned to his home in Harrisonville, and sent to plaintiff a blank application for insurance in said Mercantile Insurance Company, together with a printed financial statement, and also an application for insurance in the Marshall Town Mutual Insurance Company. In a letter which accompanied these applications he referred to the canceled policy and stated that be would keep on and get plaintiff in a good company, and that both the companies to which applications were inclosed were good companies. The plaintiff signed the application to the Mercantile Insurance Company dated July 13, 1900. Upon receipt of this signed application from plaintiff, the defendant inserted in it a description of the property, which plaintiff had omitted, and also filled out and signed the blank on the back of the application designated "Agent's Survey." On the following day he wrote to agents of the insurance company at Chicago the following letter: "Gentlemen: Please find inclosed application for $1,800 insurance on drug stock of H. E. Jones, Kingsville, Mo. Premium $27. Please issue this policy and get it to me by return mail. The company I represent kick some on country stores, consequently if I can arrange with you I will give you a good string of business. Have you arranged with the state so that I can issue policies here, and send report of same to you? If you can do this I can give you a good volume of good business. I have a fine territory and my business will run $3,000 per year in premiums. Think hard on this, as I can and will do you good if you will place me in position to do so. Get this policy to me and be sure to get all matters as I have them here. Your part of the cash will come promptly. Awaiting your favorable reply, I am, very truly," etc. The evidence does not show that the company made answer to the writer's inquiry whether it had arranged to do business in the state. However, the defendant received the policy issued by the company, and on the 17th day of July he mailed it to the plaintiff, with the following letter: "Mr. H. E. Jones, Kingsville, Mo.— Dear Sir: Please find enclosed insurance policy No. 11,166, Mercantile—of Chicago, Ill. This is a gilt-edge company as you will see from their statement enclosed, the only reason I did not put this in this company at first was I wanted to write the policy myself, but I have now arranged matters so it is just the same, and you have as good insurance as anybody in Kingsville. I have to pay these people spot cash so please enclose the premium, $27, in the return envelope, and everything is O. K. If you should have a loss wire the company at their expense and write me. I will see that you have prompt service of adjuster, and that you get a fair, square settlement," etc. The plaintiff paid the premium, which defendant, after deducting his commission, forwarded to the insurance company. Subsequently plaintiff's property was destroyed by fire. The company failed to pay his loss, and he then ascertained that it was not authorized to do business in the state. Before the evidence was heard, the...