Kusnetzky v. Security Ins. Co.
| Decision Date | 26 February 1926 |
| Docket Number | No. 25110.,25110. |
| Citation | 281 S.W. 47 |
| Parties | KUSNETZKY v. SECURITY INS. CO. SAME v. OLD COLONY INS. CO. SAME v. PHENIX FIRE INS. CO. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.
Separate petitions, consolidated for trial, by I. Kusnetzky against the Security Insurance Company, the Old Colony Insurance Company, and the Phenix Fire Insurance Company. From judgments for plaintiff; against each of the defendants, defendants appeal. Judgments affirmed on condition that plaintiff remit certain amounts; otherwise reversed and remanded.
Crow & Newman, of Kansas City, for appellants.
Walsh &' Aylward, Frank P. Walsh, and James P. Aylward, all of Kansas City, for respondent.
The plaintiff filed three petitions in the circuit court of Jackson county, one against `each of `the insurance companies named. The case against the Security Insurance Company was stated in three counts, the case against the Old Colony Insurance Company in one count, and the case against the Phenix Insurance Company in two counts. All three cases were consolidated and tried as one.
In each count of each petition the plaintiff, at dates mentioned, alleged that he was doing business in Jackson county in Kansas City, .Mo., under the firm name of Middle West Skirt Company, and that the defendant was a corporation engaged in the business of insuring property and authorized to do business in the state of Missouri; that the defendant for valuable consideration wrote and delivered to plaintiff a fire insurance policy, `which was made a part of the petition, whereby it insured the plaintiff against loss or damage by fire; that while said policy was in force, May 28, 1921, the merchandise and stock covered by said insurance company was destroyed by fire. The count then set out the value of the property, proofs of loss, amount of total insurance, and proportion which each policy should bear, and `alleged that plaintiff had performed all the `requirements of his contract of insurance. It further alleged that the defendant had vexatiously failed and refused to pay plaintiff the amount due, and `asked judgment for the amount due on the policy, 10 per cent. damages under a statute for vexatious delay, as penalty, and for attorneys' fees. With the exception of the numbers of the policies, names of the defendants, and amounts demanded, each count of each petition was substantially the same.
Each defendant filed an amended answer, alleging that at the date of the issuance of a policy in each case and a few months prior thereto, the plaintiff was conducting a business under the name and style of the Middle West Skirt Company, or Midwest Skirt Company, which was a fictitious name and not the name of a corporation authorized to do business in the state; that the plaintiff at no time applied to the secretary of state for a license authorizing him to do business under said fictitious name, and that no license or authority at any time was ever issued to plaintiff to transact business under said fictitious name; that prior to the institution of the suit, and shortly after the alleged loss, the defendant tendered plaintiff the amount paid as premium on the policy.
Plaintiff filed a reply to each answer, denied such allegations as were not admitted, and alleged further that the defendant was estopped to assert the forfeiture of a policy( by reason of matters alleged in the answer; that the defendant at the time of the issuance of the policy and prior thereto knew, well that plaintiff was the sole owner and proprietor of the property insured, and was not misled; that the defendant was informed by the plaintiff of these facts before the issuance of the policy, which it solicited knowing that it was intended to insure the property owned by I. Kusnetzky, and any defense it might have had was thereby waived; if plaintiff had not complied with the law, which he denied, defendant was estopped to assert the forfeiture and avoidance of the policy. It is further averred in each reply that sections 13276 to 13280, R. S. 1919, were unconstitutional, in contravention of certain sections of the Constitution of the United States and of the state of Missouri.
Plaintiff offered evidence to show the value of the property destroyed, that the matter was adjusted with the Underwriters' Adjusting Company and the adjuster for plaintiff, and the amount sued for was the loss determined by such adjusters.
The evidence showed that, at the time the policies were issued, and at all the times mentioned, plaintiff was conducting the skirt business under the name of the Middle West Skirt Company; the policies were issued in that name; that after the loss and before the institution of `the suits the defendants tendered to the plaintiff the premiums received.
Evidence also was offered without contradiction to prove that, at the time of the issuance of the policies, and for a long time prior thereto defendants' agents, who issued the policies, knew that Kusnetzky was doing business under the name of the Middle West Skirt Company, and that he was manufacturing and selling clothing under that name.
The defendants offered to prove that plaintiff had never made application to the secretary of state for permission to do business under that fictitious name, and was never registered by that name. Upon objection of plaintiff that evidence was excluded. It was admitted that, .after the suit was started, defendant deposited with the clerk the full amount of the premiums, with the costs that had accrued.
There was judgment for the plaintiff against each of the defendants on each and every count of each petition. The amounts for which judgments were rendered against the defendants were as follows:
Phenix Fire Insurance Company, first
count, principal and interest ................... $2,704.75
Phenix Fire Insurance Company, first
count, penalty ................................... 250.00
Phenix Fire Insurance Company, first
count, attorney fees ............................. 500.00
Phenix Fire Insurance Company, second
count, principal and interest..................... 5,409.50
Phenix Fire Insurance Company, second
count, penalty ................................... 500.00
Phenix Fire Insurance Company, second
count, attorney fees ............................. 1,000.00
Old Colony Insurance Company
and interest ..................................... 3,245.70
Old Colony Insurance Company, penalty ............. 300.00
Old Colony Insurance Company, attorney
fees ............................................. 600.00
Security Insurance Company, first count
principal and interest ........................... 540.95
Security Insurance Company, first count
attorney fees .................................... 100.00
Security Insurance Company, first count
vexatious delay .................................. 50.00
Security Insurance Company, second count
principal and interest ........................... 649.14
Security Insurance Company, second count,
attorney fee ..................................... 120,00
Security Insurance Company, second count,
vexatious delay .................................. 60.00
Security Insurance Company, third count,
principal and interest ........................... 2,704.75
Security Insurance Company, third count,
attorney fees .................................... 500.00
Security Insurance Company, third count,
vexatious delay .................................. 250.00
The defendants appealed from all the judgments, and the cases were heard here as one.
I. Appellants assign error to exclusion by the court of evidence showing that plaintiff had never registered or applied to register the name of Middle West Skirt Company with the secretary of state, on the ground that a contract of insurance in the absence of such registration is void, under sections 13276 and 13279.
The construction of these statutes hag been under consideration by this court in, two recent, cases, and by the Kansas City Court of Appeals in two recent cases.: State ex rel. Nolen v. Nelson (Mo. Sup.) 275 S. W. 927; Bassen V. Monckton (Mo. Sup.) 274 S. W. 404: Ditzell v. Shoecraft (Mo. App.) 274 S. W. 880; Reitherman v. Wheeler (Mo. App.) 247 S. W. 222. The last case decided by this court en banc was State ex rel. Nolen v. Nelson. There the party, a corporation, which claimed that a contract was void because of the failure to register a fictitious name, knew the parties it was contracting with, and accepted the benefits of the contract with knowledge that they were operating under a fictitious name. It was held that it was estopped to deny the validity of the contract. The same conclusion was suggested in the Bassen Case, supra. In the present case it was shown without contradiction that the defendant insurance companies, through their agents, &new definitely that Kusnetzky was sole owner of the Middle West Skirt Company. They dealt with him with that knowledge, wrote policies with that knowledge, accepted the premiums paid by him with that knowledge, and allowed him to believe he was insured. They received the benefits of the contract which they claim was void, and by their conduct induced plaintiff to act to his prejudice. They are therefore estopped to assert its invalidity.
It is earnestly argued by counsel for appellants here that the statute is intended to prevent fraud. Exactly. The particular fraud in contemplation undoubtedly was the deception of persons dealing with any institution trading under a name other than the actual name of the owners. One could hardly imagine any kind of a fraud which the statute would prevent other than that permitted by such concealment. When the defendants, with full knowledge of the facts, made the contracts sued on, it would be a gross fraud upon the plaintiff to permit them to repudiate the burdens of the...
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