Kossmehl v. Miller National Ins. Co.

• Decision Date: 06 February 1945
• Docket Number: No. 26644.,26644.
• Citation: 185 S.W.2d 293
• Parties: RUTH KOSSMEHL, RESPONDENT, v. MILLER NATIONAL INSURANCE COMPANY, CHICAGO, ILLINOIS, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

185 S.W.2d 293

RUTH KOSSMEHL, RESPONDENT, v. MILLER NATIONAL INSURANCE COMPANY, CHICAGO, ILLINOIS, A CORPORATION, APPELLANT.

No. 26644.

St. Louis Court of Appeals. Missouri.

Opinion filed February 6, 1945.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Ernest F. Oakley, Judge.

REVERSED AND REMANDED (with directions if remittitur be entered, otherwise reversed and remanded for new trial).

Moser, Marsalek & Dearing for appellant.

(1) The policy of the Dubuque Fire and Marine Insurance Company was valid and enforceable because: (a) There was no evidence plaintiff made any representation, misrepresentation or warranty regarding other insurance, and (b) The provision in the policy stating no other insurance was permitted was not self-enforcing and the policy did not provide for a forfeiture or any penalty for its breach. Walker, etc., v. American Automobile Ins. Co., 229 Mo. App. 1202, 70 S.W. (2d) 82; Jackson v. Security Ben. Ass'n, 139 S.W. (2d) 1014. (2) Defendant's policy contained a warranty against other insurance, the breach of which forfeited plaintiff's right to recover for the loss of any property for which she had obtained other insurance. Under the circumstances, defendant was not required to make any tender of premium to plaintiff. Doerr v. National Fire Ins. Co., 315 Mo. 266, 276; Harwood v. Insurance Co., 170 Mo. App. 298. Defendant's policy insured against the loss of many articles other than plaintiff's ring. The premium was for a lump sum and no part of it was allocated to the specific loss in question. Under such circumstances, no return or tender of premium was required. Miller v. Ins. Co. of North America, 106 Mo. App. 205, 80 S.W. 330. Where the insurance has once attached and additional insurance is later acquired in violation of the contract, the insurer is entitled to deny liability without a return of the premium because the policy was not void at the beginning. Beazell v. Farmers Mutual Ins. Co. (Mo. App.), 253 S.W. 125; Ohio Farmers Ins. Co. v. Williams, 63 Ind. App. 435, 112 N.E. 556; 26 C.J. 142. Defendant had no right to tender to or pay plaintiff the unearned premium, because she had no right to receive it and defendant had no ground upon which to rescind the policy as to her husband and thus to destroy his rights. For these reasons, the court's declarations of law 13 and 14, are erroneous. (3) Regardless of a premium tender, the payment of $1200 (the full amount due under the Dubuque policy) to plaintiff by the Dubuque Company constituted a payment and satisfaction of plaintiff's loss and discharged defendant. Where a just claim under a policy of insurance is for a liquidated amount, it can be satisfied only by payment of the full amount due, and the payment of such amount exhausts the consideration for a release of the insurer's liability and no consideration remains to support any collateral agreement. The so-called loan agreement was without consideration. It is a nullity and a sham. Berry v. Detroit Cas. Co., 300 S.W. 1026; Harms v. F. & C. Co. of New York, 172 Mo. App. 241, 157 S.W. 1046; Holman v. Met. Life Ins. Co., 98 S.W. (2d) 343; Purdy v. McGarity, 30 N.Y.S. (2d) 966. (4) In finding that plaintiff procured the Dubuque policy "by means of a misstatement of a material fact, to-wit: that there was then no other insurance covering the property in question" and in therefore declaring the Dubuque policy to be unenforceable, the court erred because: (a) There was no evidence plaintiff ever made a representation or misrepresentation to the Dubuque Company regarding other insurance. (b) The Dubuque policy contained no warranty on the subject, and (c) The policy contained no forfeiture clause to enforce the statement or condition proscribing other insurance. Authorities cited under Point (1), supra. (5) In stating that "an agreement entered into between an insurance company and the insured following the occurrence of a loss and the presentation of a claim under the policy whereby such insurance company lends its insured a sum of money to be repaid by the insured only out of a specified fund, is a valid legal contract," the court's declaration does not properly state the law. Authorities cited under Point (3), supra. (6) Defendant has reasonable grounds upon which to contest this action and the assessment of a penalty is unwarranted. Non-Royalty Shoe Co. v. Assurance Co., 277 Mo. 399, 210 S.W. 37; Camp v. John Hancock Mut. Life Ins. Co. (Mo. App.), 165 S.W. (2d) 277; Bandy v. East & West Ins. Co. (Mo. App.), 163 S.W. (2d) 350; Volz v. Travelers' Ins. Co. (Mo. App.), 161 S.W. (2d) 985. (7) The court erred in assessing interest on the penalty from October 3, 1940, when the penalty was not imposed until October 25, 1943.

Willson, Cunningham & McClellan for respondent.

(1) To constitute "other insurance" within the meaning of the provisions of the defendant's policy prohibiting "other insurance," such "other insurance" must cover the same parties and the same subject-matter. The defendant's policy issued to Oscar H. Kossmehl and Ruth Kossmehl is not violated by a policy subsequently issued by another insurance company to Ruth Kossmehl only. Cova v. Bankers & Shippers Ins. Co. (Mo. App.), 100 S.W. (2d) 23, 30; Browne v. Insurance Co., 225 Mo. App. 665, 37 S.W. (2d) 977. (2) Defendant's policy prohibiting "other insurance" is not violated by the issuance of another policy unless the latter policy is valid, enforceable, collectible insurance. Cox v. Home Ins. Co., 331 Mo. 10, 52 S.W. (2d) 872; Obermeyer et al. v. Globe Mut. Ins. Co., 43 Mo. 573, 577; Dahlberg v. St. Louis Mut. Ins. Co., 6 Mo. App. 121. (a) The other policy issued by the Dubuque Fire & Marine Insurance Company was unenforceable, because obtained by a misstatement regarding a material fact, to-wit: the non-existence of any other insurance. Parks v. Insurance Co., 100 Mo. 373, 382; Hutchinson v. Western Ins. Co., 21 Mo. 97; Cohen v. Ft. Dearborn Casualty Underwriters (Mo. App.), 285 S.W. 1024; Williams v. Conn. Fire Ins. Co. (Mo. App.), 47 S.W. (2d) 207. (b) The other policy issued by the Dubuque Fire & Marine Insurance Company contains a provision prohibiting other insurance, and a provision that the entire policy is void in the event of misrepresentation of any material fact. Under such circumstances the procurement of that policy by a misstatement of fact regarding the existence of the defendant's policy, rendered the Dubuque Fire & Marine Insurance Company policy void from its inception. See cases under sub-paragraph (a) above; Dolan v. Mo., etc., Ins. Co., 88 Mo. App. 666; Whitmore v. Sup. Lodge K. & L. of H., 100 Mo. 36; 26 C.J., pages 154-5, sec. 189; Smith v. Ins. Co., 188 Mo. App. 297, 175 S.W. 113; Zackwick v. Hanover Fire Ins. Co. (Mo. App.), 225 S.W. 135, 139; 2 Restatement of the Law of Contracts, sec. 470; Life Ins. Co. v. Glaser, 245 Mo. 377, 387. (3) Defendant will not be heard to assert a forfeiture of its policy for alleged breach of a condition subsequent, where it has never tendered a return of any portion of the premium paid to anyone, and still retains the entire premium. State ex rel. Northwestern Nat. Ins. Co. v. Trimble et al., 323 Mo. 458, 20 S.W. (2d) 46; Williams v. Ins. Co. (Mo. App.), 47 S.W. (2d) 207; Mackey et al. v. Home Ins. Co., 221 Mo. App. 577, 284 S.W. 161. (a) The burden rests upon defendant to plead and prove that a tender of the return premium has been made, including the facts relative to the amount of return premium due and to whom due. Williams v. Conn. Fire Ins. Co. (Mo. App.), 47 S.W. (2d) 207, 209; Pauley v. Assurance Co. (Mo. App.), 261 S.W. 340; Leer v. Ins. Co. (Mo. App.), 250 S.W. 631; Northwestern Nat. Ins. Co. v. Trimble, 323 Mo. 458, 20 S.W. (2d) 46. (b) Where a policy is issued to a husband and wife jointly and a warranty of the policy is violated by the act of either of such parties, the right which accrues to the Insurance Company is a right to declare the entire contract forfeited. It cannot refuse payment of part of the insurance yet contend that the remainder is in force. Kosior v. Cont. Ins. Co. (Mass.), 13 N.E. (2d) 423; Schurtz v. Cushing, 347 Mo. 113, 146 S.W. (2d) 591. (4) Where an insured holds two policies protecting the same property against the same hazard, such insured, after a loss, can have only one payment and satisfaction for the loss. However, money advanced to such insured by one of the insurance companies pursuant to a written agreement that such money is being advanced as a loan, does not constitute a payment or satisfaction of the loss, and the insured may recover the amount of the loss from the other insurer. (a) The provision of defendant's policy exonerating it from liability where plaintiff has received payment of her loss from anyone else, is but an affirmation of existing rules of law and adds nothing to the defendant's rights. Hutchinson v. Western Ins. Co., 21 Mo. 102; Gabriel v. Ins. Co. (Mo. App.), 108 S.W. (2d) 628. (b) Loan agreements entered into between an insurance company and its insured following the occurrence of a loss are valid legal contracts, and monies advanced under such agreement do not constitute a "payment" or "satisfaction" of the insured owner's loss. Luckenbach et al. v. McCahn Sugar Refining Co. et al., 248 U.S. 139, 39 Sup. Ct. 53, 63 L. Ed. 170; Cova v. Bankers & Shippers Ins. Co. (Mo. App.), 100 S.W. (2d) 23; Dixey v. Federal Compress & Warehouse Co. (C.C.A. 8, 1942), 132 Fed. (2d) 275; The Turret Crown, 297 Fed. 766; The J.L. Luchenbach, 65 Fed. (2d) 570; Eber Bros. Wine & Liquor Corp. v. Firemen's Ins. Co., 30 F. Supp. 412; Cotton Co-op. Asso. v. Yazoo etc., Ry. Co. (Miss.), 197 So. 828; Automobile Ins. Co. v. Eastern Mchy. Co. (Ohio), 25 N.E. (2d) 954; Automatic Sprinkler Corp. v. Lbr. Co., 147 La. 542; McCann v. Dixie Lake & Ry. Co. (Ga.), 162 S.E. 869; Shiman Bros. & Co., Inc. v. Nebr. Natl. Hotel (Nebr.), 9 N.W. (2d) 807; See also Annotations 1 A.L.R. 1528, 132 A.L.R. 607.

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