Koontz v. Hannibal Sav. & Ins. Co.

• Decision Date: 31 January 1868
• Citation: 42 Mo. 126
• Parties: A. H. C. KOONTZ, Respondent, v. HANNIBAL SAVINGS AND INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

42 Mo. 126

A. H. C. KOONTZ, Respondent,

v.HANNIBAL SAVINGS AND INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

January Term, 1868.

Appeal from Cooper Circuit Court.

This action was upon a policy of insurance issued by defendant upon the livery stable and other property of plaintiff in the city of Boonville, Cooper county. The policy issued by defendant contained the following clause in reference to the application for insurance and the description of property: “The application and description referred to in this policy shall be considered a part of this contract and a warranty by the assured; and any false representation by the assured of the condition, situation, or occupancy of the property, or otherwise, or any omission to make known any fact material to the risk, or any over-valuation, or any misrepresentation whatever, either in the written application or otherwise, shall render this policy void and of no effect.” Upon which condition, with others, it was declared in the policy that the said policy was made and accepted.

On the 21st day of January, 1866, the livery stable and its contents were destroyed by fire; and this action was brought to recover the value of the policy. Other facts material to the case appear in the opinion of the court.Wingate & Brady, and Adams, for appellant.

The respondent's answer to the question propounded to him in his application for insurance, during the existence of any encumbrance upon the property, constituted a warranty both by the terms of the policy and the application which formed a part of the policy, and was in the nature of a condition precedent to any recovery upon the policy. It was untrue when made. The encumbrance upon the estate, existing in favor of Myers, was a breach of the warranty, and a complete bar to any recovery for any part of the loss, either for the real or personal property. (3 Kent's Com. 288; Ang. on Ins. §§ 139, 140, 141, 142 a., 148; Ellis on Fire and Life Ins., Shaw's ed., 81; see, also, the provisions of the policy sued on, which prevent any recovery at all in this case; Loehner v. Home Mut. Ins. Co., 17 Mo. 250; Lit. & Blach. Dig. Fire Ins. Dec. 167, § 2; Friesmuth v. Agawam Mut. Ins. C., 10 Cush., Mass., 587; Lee v. Howard Fire Ins. Co., 3 Gray, Mass., 583; Smith v. Empire Ins. Co., 25 Barb. 497; Lovejoy v. Augusta Mut. Fire Ins. Co., 45 Me. 472; Richardson v. Maine Ins. Co., 46 Me. 394; Hutchison v. The Western Ins. Co., 21 Mo. 100, 101, etc.; Borradaile v. Hunter, 5 Man. & Gran. 639; Newcastle Fire Ins. Co. v. McMorran, 3 Dow. 262; Ang. on Ins., appendix 7; Arnold on Ins. 58; Deitz v. Mound City Ins. Co., 38 Mo. 85.

D. A. McMillan, and Draffin, Hutchinson & Muir, for respondent.

The policy of insurance covered the livery stable, live stock, and other personal property of the assured, but each was separately stated and appraised; and a failure to disclose a deed of trust on the real estate, though avoiding the policy as to the stable, would not avoid it as to the live stock and other personal property insured in the same policy. The principles involved in this case are the same as those in Loehner v. Home Mut. Ins. Co., 17 Mo. 247; Clark v. N. E. Mut. Ins. Co., 6 Cush. 343; Phœnix Ins. Co. v. Lawrence et al., 4 Met., Ky., 9 and 12, 3d sub.; Trench et al. v. The Chenango County Mut. Ins. Co., 7 Hill, N. Y., 122.

Although the case of Trench et al. v. The Chenango County Mut. Ins. Co. has been reversed by the Court of Appeals of that State in the case of Wilson v. Herkimer County Mut. Ins. Co., 2 Seld., N. Y., 53, yet the principle of the divisibility of contracts of insurance, as laid down in that case, is not controverted.

The maxim “void in part, void in toto” expresses no general principle of law. On the contrary, the general rule is that the good shall stand, although mixed with the bad. And a policy of insurance may be void in part and valid in part if the subject matter is capable of being separated. (See cases above cited, and Curtis et al. v Leavitt, 15 N. Y. 9; Chitty on Cont. 692.)

WAGNER, Judge, delivered the opinion of the court.

The single point presented by the record in this case is, whether the court committed error in holding that the assured might recover the value of the personal property covered by the policy of insurance, when the poncy as to the real estate was admittedly void.

The action was instituted on a policy of insurance executed by the defendant to the plaintiff, founded up on a written application made by the assured, which, by the terms of the policy, became and formed a part of the policy itself. The written application, which constituted a part of the policy, contained the following interrogatories: “What is the title?” Answer, “Fee simple.” “Is your property encumbered? by what? and to what amount?” Answer, ““No.” The application then concluded with these words: “The foregoing is a correct description of the property to be insured, and a warranty on the part of the applicant on which the insurance will be predicated; and the applicant hereby agrees to accept the policy hereon from said company, if this application be approved.” The policy covered a livery stable, and horses and other personal property in the same, and insured the plaintiff against loss by fire which might happen, except where the fire occurred by the negligence or design of the insured. The policy was for $5,000--one thousand dollars being on the livery stable, and the balance on the personal property. The property was separately valued and appraised, and, after the insurance attached, was all consumed by fire. The answer of the plaintiff to the question concerning encumbrances was untrue, as there was a deed of trust upon the real estate at the time it was made. As the record stands, it is conceded by the...