King v. Phoenix Insurance Co. of Brooklyn, N. Y.

• Decision Date: 26 May 1903
• Parties: JOHN H. KING, Respondent, v. PHOENIX INSURANCE COMPANY OF BROOKLYN, N. Y., Appellant
• Court: Missouri Court of Appeals

76 S.W. 55

101 Mo.App. 163

JOHN H. KING, Respondent, v. PHOENIX INSURANCE COMPANY OF BROOKLYN, N. Y., Appellant

Court of Appeals of Missouri, St. Louis

May 26, 1903

Appeal from Lincoln Circuit Court.--Hon. E. M. Hughes, Judge.

Judgment reversed and cause remanded.

Thomas T. Fauntleroy, C. H. Fauntleroy and Norton & Avery for appellant.

(1) The first instruction is erroneous because it allows the jury to find as a fact that Mr. Pace "had authority to make contracts of insurance" [meaning oral contracts such as the instruction submits]. There was no evidence of such authority. On the contrary, the written commission of Mr Pace (insisted on by plaintiff to prove Mr. Pace's powers as agent) fails to confer such authority. Embree v. Ins Co., 62 Mo.App. 132; Trask v. Ins. Co., 53 Mo.App. 625. (2) Where the agent's authority is in writing it can not be enlarged by any implied power. Bank v. Schaumberg, 38 Mo. 228; Ashley v. Bird, 1 Mo. 640. It is error to instruct for a finding which has no testimony to support it. O'Fallon v. Boismenu, 3 Mo. 405. (3) An agreement to issue a fire policy implies the usual conditions of such a policy (Vining v. Ins Co., 89 Mo.App. 311), and they should be stated and compliance therewith alleged. Bayse v. Ambrose, 32 Mo. 484; Ricketts v. Hart, 73 Mo.App. 653; Roy v. Boteler, 40 Mo.App. 213. (4) The admissions were also improper because made by a subordinate agent after the fact, and not as part of the res gestae. Price v. Thornton, 10 Mo. 136; O'Bryan v. Kinney, 74 Mo. 125; Aldridge v. Furnace Co., 78 Mo. 559; McDermott v. Railroad, 73 Mo. 516; Barker v. Railroad, 126 Mo. 143.

W. A. Dudley and E. B. Woolfolk for respondent.

(1) The court, on the authority of the agent's commission, might have declared as a matter of law that the agent had authority to make a verbal contract of insurance. It made him a "policy-writing" agent, "clothed with the full powers of his principal." Parsons v. Ins. Co., 132 Mo. 583; McCullough v. Ins. Co., 113 Mo. 606. All the late cases are to that effect. (2) There was no error in admitting the declaration of agent Pace when inquiries were made as to the status of the insurance. Pace was a general agent. Nickell v. Ins. Co., 144 Mo. 420; Laundry Co. v. Ins. Co., 151 Mo. 90; Wolf v. Ins. Co., 86 Mo.App. 410; Chamberlain v. Ins. Co., 80 Mo.App. 589. (3) And the company is bound by his declarations under the rules as to admissions of parties to the suit. Malecek v. Railroad, 57 Mo. 17; Northrup v. Ins. Co., 47 Mo. 435; Bates v. Holliday, 31 Mo.App. 162; Jackson v. Ins. Co., 27 Mo.App. 62.

OPINION

REYBURN, J.

Plaintiff was erecting a frame building in Lincoln county to be devoted to purposes of religious worship. The building had been covered, during its progress, by successive insurance policies issued by defendant, through its agent at Elsberry, John W. Pace, the first policy for a term of sixty days, the next for a period of one month expiring February 7, 1901; the amount of the risk in both these policies was the same, the precise recital in the last policy being "$ 750 on the one-story frame, shingle roof building and its foundations, to be occupied as a church when completed (builder's risk), and situated in survey 1724." On the day of the expiration of the second policy, an interview occurred between plaintiff and Pace, the agent of defendant, of which plaintiff's version is thus exhibited by the record:

"Q. When did you see him [meaning Mr. Pace] again about the insurance A. I saw him on the 7th of February, about ten o'clock; met him on the street just above the post office and I asked him, I says, 'Mr. Pace, when does this second policy expire?' He says, 'To-day at twelve o'clock;' I says, 'I want another one.'

"Q. Want another one? A. Yes, sir; he says, 'All right.'

"Q. Well, you told him you wanted another policy? A. Yes, sir.

"Q. What did he say in answer to that? A. He says, 'We will go down to the office' and we went to the post office and he got his mail out, and was kind of looking over his mail matters, and I says: 'Mr. Pace, if that policy lapses to-day at twelve o'clock I want another;' he says; 'When will you get the house done?' I says, 'I don't know whether I can get it done in five days or not.' I says, 'What limit of time can you write me a policy, what length of time, how short?' He says, 'I can write you as low as five days;' I says, 'I can't finish that building in that time;' he says, 'I will write you one for ten days;' I says, 'What will it cost me?' He says, 'It will cost you $ 2.25.' I says, 'Ain't that pretty high Mr. Pace for only ten days;' he says; 'I can't do any better on short rates,' and he stopped and took out a little card (his rate card) and figured on that card a little bit and says, 'I will tell you what I will do, I will knock off my commission and make it even money two dollars;' I says, 'Write it up,' at that the conversation closed. I started to go out of the post office, I seen he was busy over his papers, and turned and walked back; I says, 'Mr. Pace, don't neglect to write that policy on the church when this second goes out;' he turned and pointed his finger at me and says, 'Mr. King, whenever I tell a man anything, that you can depend on;' I went on about my business.

"Q. In that conversation, what, if anything, was said about when you was to pay? A. I told him I would get the money for him about the last of the week; he says, 'Mr. King, it doesn't matter, any time,' he says, 'in the run of the month to pay it will do, so I can make my reports.'

"Q. Well, what company? A. With the Phoenix Insurance Company.

"Q. You say he said he would write you in the Phoenix Insurance Company of Brooklyn? A. Yes, sir; that was my understanding from the first to the last."

What transpired at the next meeting following the fire, which occurred February 9th is described by plaintiff in the following language:

"Q. Well, what took place when you saw him after the fire the first time; what did you see him about; what did you go to see him for? A. I went to get my policies.

"Q. Well, what took place? A. I had taken the money and met the old gentleman out close to Mr. Britt's shop, between his home and his office, and I was standing there waiting for him; waiting to get to see him; I had been to his house the day before. I couldn't see him and I just went out on the road there and waited there at the shop to see if I could catch him; finally he came along; I says, 'Mr. Pace, I want my policy,' he says, 'All right,' and we walked down from Britt's shop to his office, and I walked up and took the money out and laid it down for the policies; he shoved back the money and says, 'I can't take that;' I says, 'Why?' he says, 'I sent your application in, Mr. King, and they turned it down on the limit of time.'

"Q. What did he say about giving you the policy? A. He give me the second policy; the one I never had got.

"Q. But didn't give you the ten days' policy? A. No, sir.

"Q. He said the company had turned the risk down? A. Yes, sir.

"Q. I will ask you if anything was said to you about an application having to be approved before the policy would go into effect? A. Nothing of the kind."

The petition of plaintiff alleged the authority of Pace, as local and established agent of defendant, to receive applications, take risks, insure, make out and deliver policies, collect and receive premiums for defendant, the application on the date mentioned by plaintiff to Pace as such agent, an agreement to insure the property described for ten days, and the further agreement in pursuance of such contract of insurance so made, and in consideration of the liability assumed by plaintiff to pay the premium, that defendant would issue and deliver to plaintiff an insurance policy. The petition proceeding, averred the total destruction by fire on February 9, 1901, of the property insured, the damage thereby to plaintiff in excess of the amount of insurance, notice of loss, and tender of the premium to defendant, concluding with the general allegation of due performance of all conditions of the contract by plaintiff.

The answer of defendant was a general denial. A jury trial resulted in a verdict for full amount in favor of plaintiff.

1. Appellant urges that the petition embraced in the description of the contract of insurance an agreement by defendant to issue a policy in the terms recited, but that the case was submitted to the jury by the instructions upon the theory of a contract consummated with the agent without any policy. The distinction between a contract to insure or to issue a policy and the agreement contained in a policy itself has been recognized and is clearly defined. Baile v. Ins. Co., 73 Mo. 371.

The appellant insists further that upon plaintiff's testimony, most favorably regarded, an agreement would appear to issue a policy by the same company for the same amount covering the same property, though for a briefer period than the expiring policy, but impliedly in the same form and containing the same limitations and conditions. This contention and the deductions that might ensue therefrom are silenced and eliminated by the face of the pleadings: if defendant desired to rely on the non-performance of any of the conditions in the policy to be issued, it should have interposed such defenses by specific averments in its answer. Such facts, if present, being raised by legal implication are not constituted facts, necessary to be pleaded to state plaintiff's cause of action, and if defendant wished to urge breaches of provisions in the policies employed in the prior contracts of insurance by defendant of the same property, it devolved on the defendant to plead those terms of the instrument it claimed to have been contemplated...