Kratchman v. North British & Mercantile Ins. Co., Ltd., of England
| Decision Date | 02 June 1947 |
| Citation | 203 S.W.2d 483,240 Mo.App. 297 |
| Parties | Morris Kratchman, Appellant, v. North British and Mercantile Insurance Company, Limited, of England, a Corporation, Respondent |
| Court | Kansas Court of Appeals |
Delivered
Appeal from Circuit Court of Nodaway County; Hon. Ellis Beavers Judge.
Judgment Affirmed.
C B. DuBois and C. W. Crossman for appellant.
When the policy provides, as in the instant case, that no officer agent or representative of the insurer shall have power to waive the conditions except as by the terms of the policy may be waived and then only by written agreement endorsed or attached thereto, the parties are bound by such provision and are estopped to offer oral testimony as to any agreement contrary to said provision. Beery v. Equitable Fire Ins. Co., (Mo. Sup.) 298 S.W. 63, l. c. bottom of p. 68 to p. 69; Northern Assur. Co. v. Grandview Bldg. & Loan Assn., 183 U.S. 308. Oral evidence is inadmissible to vary, enlarge upon or contradict the terms of written evidence, unless the written contract is ambiguous, and then only to explain the meaning of the ambiguity, or unless fraud be pleaded in the procurement of the contract. 32 Cor. Jur. Secum., Sec. 901, p. 816; 8 Couch, Cyc. of Ins., Sec. 2182, p. 7052; 4 Page on Contracts, Sec. 2137; Berry v. Equitable Fire Ins. Co., (Mo. Sup.) 298 S.W. 63, l. c. bottom p. 68 to p. 69; Elliott v. Winn, (En Banc) 264 S.W. 391, l. c. 393; State ex rel. v. Grinstead, 282 S.W. 715, l. c. 721; Crossan v. Noel, (K. C. App.) 120 S.W. 2d 189, l. c. 191 (1-3); Plumb v. Cooper, 121 Mo. 668, l. c. 676; Fleischman-Harris Realty Co. v. Klein, 82 S.W. 2d 605, l. c. 610; J. B. Colt Co. v. Gregor, (Mo. Sup.) 44 S.W. 2d 2, l. c. 6, right-hand column; Employer's Ind. Corp. v. Garrett et al., (Mo. Sup.) 38 S.W. 2d 1049, l. c. 1053 (3). The only evidence of any written agreement was the removal permit, and it was not an agreement to transfer the insurance policy to cover at 732 Massachusetts Street. It was but a permission or privilege given assured to remove the property to 732 Massachusetts Street and did not apply until the property was removed to the location. 1 Wood on Fire Ins. (2d Ed.), Sec. 48, p. 122; Richards on Ins. (4th Ed.), p. 338; 2 May on Ins. (4th Ed.), Sec. 401 a, p. 924; Kunzze v. American Exchange Ins. Co., 41 N.Y. 412; Sharpless et al. v. Hartford Fire Ins. Co., 21 A. 451. Court must construe "removal permit" as a whole and not from detached parts. Rickey v. N. Y. Life Ins. Co., 71 S.W. 2d 88, l. c. 93 (3-5). Punctuations in removal permit do not control and the court may supply or rearrange punctuations, and to the extent of ambiguity or uncertainty will be construed most strongly against insurer. 17 Cor. Jur. Secum., p. 723, Sec. 306. 17 Cor. Jur. Secum., p. 751 Sec. 324. The plaintiff is not estopped to plead the provisions that no agent could waive policy conditions that no change be made in the policy unless written on or endorsed on the policy. Beery v. Equitable Fire Ins. Co., 298 S.W. 63 l. c. bottom of p. 68 to p. 69. A party cannot shift his position and offer proof, either oral or written, contradicting or at variance with his pleadings. 32 Cor. Jur. Secum., Sec. 1013, p. 1032; State ex rel. v. Webster Groves, etc., (En Banc) 37 S.W.2d 905, l. c. 908; Lilly v. Menke, (En Banc) 143 Mo. 137, l. c. 146; Bensieck v. Cook, 110 Mo. 173, l. c. 182 (II); Wood v. Utter, 77 S.W.2d rcb, l. c. 835 (1-2; Lenox v. Harrison, 88 Mo. 491, l. c. 495; Weil v. posten, 77 Mo. 284, l. c. 287. In absence of pleading and proof of fraud contract will be enforced as made. Monticello Bldg. Corp. v Monticello Inv. Co., (Mo. Sup.) 52 S.W. 2d 545, l. c. 551, right-hand column. Ambiguity in written contract (removal permit) does not open door for parol evidence, except for purpose of explaining ambiguity. Murphy v. Holliway et al., (K. C. App.) 16 S.W. 2d 107, l. c. 114 (15-17); Wood v. Utter, 77 S.W. 2d 832, l. c. 835 (1-2). Principal may restrict apparent scope of agent's authority by provision that verbal agreement shall not alter written agreement. Murphy v. Holliway, 16 S.W. 2d 107, l. c. 112 (1-6). The policy was filed and made a part of the petition and marked as Exhibit A, and is a part of the petition (2, Par. III). Laws, 1943, Sec. 44, p. 371. The policy as filed has no provision written or endorsed thereon and the policy as filed is the sole and only competent evidence of the contract. Teich v. Globe Ind. Co., 2 S.W. 2d 554, l. c. 557 (2) (6-7); Lumber Underwriters v. Ruff, 237 U.S. 605, l. c. 609. The case should be reversed and remanded with direction to trial court to set aside the verdict of the jury and enter judgment for plaintiff for $ 2,000 and interest, and receive evidence as to attorney's fee, and this notwithstanding the verdict of the jury. Laws of Missouri, 1943, p. 395, Sec. 140(c). In re Winzenreid's Estate. Winzenreid v. Winzenreid's Estate et al., (Wis.) 160 N.W. 1064.
Alvin C. Trippe, Hale Houts and Hogsett, Trippe, Depping & Houts, for respondent.
An oral agreement of the parties transferring the policy to cover property at 732 Massachusetts Street was valid and binding. Such an agreement was a new contract and in no way precluded by the policy. Hulen v. National Fire Insurance Co., 102 P. 52, 80 Kan. 127, syl. 2. Kerr v. The National Fire Insurance Co. of Hartford, 41 P.2d 736, 141 Kan. 393, syl. 1. Bealmer v. Hartford Fire Insurance Co., Mo. App., 193 S.W. 847, syl. 2 and 5. Bergerson V. General Insurance Co., Mo. App., 105 S.W. 2d 1015, syl. 7. Godwin v. Iowa State Insurance Co., Mo. App., 27 S.W.2d 464, 466, syl. 1 and 3. Wilson v. German-American Insurance Co., 133 P. 715, 90 Kan. 355, 358. Robinson v. Franklin Fire Insurance Co., Mo. App., 35 S.W. 2d 615, syl. 2. Davis v. Scovern, 130 Mo. 303, 315. The oral agreement of transfer was not merged into or destroyed by the removal permit introduced in evidence. Defendant's Instruction B correctly advised the jury that if the agreement was entered into it was immaterial whether the Firestones received a copy of the removal permit. Bealmer v. Hartford Fire Insurance Co., Mo. App., 193 S.W. 847, 849. 17 C. J. S. 874. The submission of the defense that the policy had been transferred by agreement of the parties was amply supported by the evidence. Midland National Bank v. Schoen, 123 Mo. 650.
Plaintiff sued to recover the full amount of a fire insurance policy. The verdict of the jury and the judgment were for the defendant. Plaintiff appealed.
The cause of action is based on a fire insurance policy #984035, bearing date August 20, 1944, issued by defendant's agent in Lawrence, Kansas, in the face amount of $ 2000, insuring Sophie Firestone and Bernard Firestone for one year against loss or damage by fire. The policy, as pleaded and introduced by plaintiff, insures furniture and other personal property situated at 808-810 Massachusetts Street, Lawrence, Kansas. It is admitted that on March 1, 1945, a fire occurred at that location. For the purposes of this appeal it may be considered that the loss exceeded the policy in question and other policies on the property, and that Sophie and Bernard Firestone were the owners of the personal property there situated at the time. Some time subsequently to the fire, their interest in the said policy and claim was assigned to the plaintiff.
The part of the answer necessary here to consider was, in effect, that at the time of the fire said policy was not in force and effect on the property located at the address given above, but that at the request of Sophie and Bernard Firestone, and under an agreement between them and the defendant, said policy had been transferred to cover property located at 732 Massachusetts Street, Lawrence, Kansas, and there only, and was in effect as to property there located at the time of the alleged fire at 808-810 Massachusetts Street; that in accordance with such agreement to transfer, the removal permit therefor was mailed to said insured and received by them, all of which facts they knew long prior to the fire. For the reason stated, defendant denied liability on the policy here sued on. Plaintiff, by reply, denied the new matter set fourth in the answer.
Bernard Firestone, in behalf of the plaintiff, testified to the ownership by himself and wife of the contents destroyed by the fire at 808-810 Massachusetts Street, Lawrence, Kansas and that the building in which the store was located belonged to the plaintiff, his father-in-law, who lives in Kansas City, Missouri; that at the time the witness and his wife purchased the business, about May 1, 1944, there was $ 8000 fire insurance on the merchandise covered by three policies, two of which were written by the defendant company of which one was for $ 2000. These policies were then assigned to the Firestones. About July, 1944, the Firestones acquired warehouse space at 732 Massachusetts Street, about one block north of the store. They kept new furniture in the warehouse location until it was desired to move it to the store building. He said he never had moved any merchandise from the store building to the warehouse. Through Mr. Hartley, representing the local agent for the defendant, he ordered the three policies on the contents at the store renewed for a year from August 20, 1944. On March 1, 1945, a fire occurred at the store at 808-810 Massachusetts Street. Later on that day an adjuster came to the scene of the fire and inquired as to the stock in the building and arranged to come back to see him again as soon as witness could get his papers out of the safe. He asked the witness to prepare an inventory of the loss; that the loss of contents in the building was $ 9,930. This information he conveyed to the adjuster. The adjuster told him that the loss would exceed the...
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