Jones v. Horn

• Decision Date: 01 February 1904
• Parties: H. E. JONES, Respondent, v. W. A. HORN, Appellant
• Court: Kansas Court of Appeals

78 S.W. 638

104 Mo.App. 705

H. E. JONES, Respondent, v. W. A. HORN, Appellant

Court of Appeals of Missouri, Kansas City

February 1, 1904

Appeal from Cass Circuit Court.--Hon. Wm. L. Jarrott, Judge.

Cause reversed.

Chas W. Sloan and Chas. W. Hight for appellant.

(1) The court erred in overruling defendant's objection to any evidence under the petition. There was no statutory or other cause of action stated in petition. Barker v Railroad, 91 Mo. 86; Oats v. Railway, 104 Mo 514; Hickman v. Kansas City, 120 Mo. 110; Utley v. Hill, 155 Mo. 273; McIntosh v. Railroad, 103 Mo. 131; Poor v. Watson, 92 Mo.App. 89; Holverson v. Railway, 157 Mo. 251; Fusz v Spaunhorst, 67 Mo. 256; Dunn v. Sanders, 48 Mo.App. 610. (2) Article 7, Revised Statutes 1899, requiring foreign companies to procure a certificate from the Superintendent of the Insurance Department of this State nowhere gave plaintiff Jones a right of action against defendant for damages in case of loss for doing business with or for the Mercantile Fire Insurance Co. of Chicago, when said company was not licensed to do business here. Article 7, page 1872, Revised Statutes 1899. (3) If the petition be held to state a cause of action at common law we find it charges that the Mercantile Ins. Co. was insolvent on July 16, 1900, at the time the policy was issued to plaintiff, and that defendant for the purpose of inducing plaintiff to accept a policy in said company represented to plaintiff that the company was financially good and responsible and by reason of said company not being authorized to transact business in this State when defendant knew the company was insolvent and had not complied with the laws of the State, defendant thereby became liable, etc. The burden rested on plaintiff to prove insolvency. (4) There was no evidence in case or in finding of the facts by the court to sustain an action for deceit or fraud. Huston v. Tyler, 140 Mo. 252; Dry Goods Co. v. Coomer, 87 Mo.App. 404; Dulaney v. Rogers, 64 Mo. 201; Bank v. Byers, 139 Mo. 627; Utley v. Hill, 155 Mo. 232; Redpath v. Lawrence, 42 Mo.App. 101; Thompson v. Irwin, 76 Mo.App. 431; Green v. Worman, 83 Mo.App. 575; Paretti v. Rebenach, 81 Mo.App. 494. The mere finding of the court that defendant represented to plaintiff that said company was financially good and responsible would not support an action for deceit. Anderson v. McPike, 86 Mo. 300; Cornell v. Real Estate Co., 150 Mo. 383; Becraft v. Grest, 52 Mo.App. 586.

R. T. Bailey, Fyke Bros. and Snider & Richardson for respondent, submitted argument.

OPINION

BROADDUS, J.

The plaintiff in the year 1900 was engaged in the mercantile business and owned two drugstores, 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 start 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 towns like Kingsville but the company cancelled 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 Co. In a letter which accompanied these applications he referred to the cancelled policy and stated that he would keep on and get plaintiff in a good company, and that both the companies to which applications were enclosed were good companies. The plaintiff signed the application to the Mercantile Insurance Co. 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 Co. at Chicago the following letter:

"Gentlemen:--Please find enclosed 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. 11166, 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 court was asked to make a finding of facts. Amongst other things, the finding was that the defendant was acting as agent for the Mercantile Insurance Co; that the insurance was obtained upon the representations of defendant; that said company was financially good and responsible; that plaintiff, at the time he received the policy, did not know the company was not authorized to do business in the State; that defendant had such knowledge; that it was not shown that said company was insolvent at the date of the policy; and that it was not shown that it had any property in the State.

The plaintiff in his petition relies for recovery on the ground of the representations of defendant, the inducement for his acceptance of the policy that the company was "financially good and responsible;" that at the time of the issue of the policy the insurance company was insolvent, and that it is still insolvent; that defendant knew at the time of said insolvency of which plaintiff was ignorant, and that plaintiff did not know that said company was unauthorized to do business in this State. The finding was for plaintiff.

At the beginning of the trial defendant objected to the admission of any evidence on the ground that the petition did not state a cause of action....