Leer v. Continental Ins. Co. of New York

• Citation: 250 S.W. 631
• Decision Date: 30 April 1923
• Docket Number: No. 14537.,14537.
• Parties: LEER v. CONTINENTAL INS. CO. OF NEW YORK.
• Court: Missouri Court of Appeals

250 S.W. 631

LEER v. CONTINENTAL INS. CO. OF NEW YORK.

No. 14537.

Kansas City Court of Appeals. Missouri.

April 30, 1923.

Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.

"Not to be officially published."

Action by Bert Leer against the Continental Insurance Company of New York. Judgment for plaintiff, and defendant appeals. Affirmed.

D. A. Murphy, of Nevada, Mo., for appellant.

Chas. E. Gilbert, of Nevada, Mo., and Gibson & Gibson, for respondent.

BLAND, J.

This is an action upon a fire and tornado insurance policy in the sum of $2,575, covering certain personal property of plaintiff consisting of household and kitchen furniture, grain, hay, harness, farm machinery, live stock, etc. There was a fire destroying some of the property insured, but defendant refused to pay for the loss resulting in this suit. There was a verdict and judgment in favor of plaintiff in the sum of $1,300 for the value of the property destroyed, $75 interest, and $200 attorney's fees. Defendant has appealed.

It is insisted that the demurrer to the evidence should have been sustained. This necessitates our stating the facts, together with all reasonable inferences that may be drawn therefrom, .in their most favorable light to plaintiff. Baird v. Citizens' Ry. Co., 146 Mo. 265, 281, 48 S. W. 78. We state this oft-repeated rule, laid down by our Supreme Court, for the reason that in discussing this point defendant relies materially upon defendant's evidence, which is contradicted by plaintiff's testimony by way of inference if not expressly.

The fire occurred January 19, 1922. The answer admitted the issuance of the policy, and for defense pleaded certain provisions of the policy invalidating it in case of an incumbrance, and alleged that plaintiff had executed three chattel mortgages on the property without the knowledge and consent of the defendant; that such consent, according to the terms of the policy, could only be obtained by written indorsement on the policy made by defendant at its Western department office in Chicago, Ill. The answer further alleged that a portion of the property for which plaintiff made claim after the fire had been removed prior to the fire, and that plaintiff had grossly exaggerated his loss.

The facts show that there were three chattel mortgages upon the property insured, two of which existed at the time the insurance was written and one executed a few days before the fire. Plaintiff testified that he gave notice to the agent at the time the policy was taken out of the two chattel mortgages then in existence, and that he notified the agent two days after the execution of the third mortgage and before the fire of the existence of the last mortgage. There was no effort made on behalf of the defendant to return the unearned premium at any time before or during the trial. The policy was negotiated and delivered by defendant's agent in Nevada, Mo. This agent was designated as district agent and advertised itself as such. It had authority to fill out blank policies in its possession and to issue the same on town property, but as to farm property the application for such a policy was received by it and forwarded to the Chicago office of the defendant, where the policy was issued and returned to the agent, who countersigned the same as regular agent, collected the premium, and delivered it to the insured. The policy in suit is a farm policy and provides that no assignment of the policy should be valid "until written consent is indorsed hereon by the company in its Western department office in Chicago, Ill."; that if any mortgage or other loan be made upon the property of the insured which he should desire approved by the defendant, "an indorsement will be written in the policy on request of the assured at the Western department office making the loss, if any, payable to the other party in interest"; that "all indorsements must be made by an officer of this company in its Western department office at Chicago, Ill." It further provided that "no local agent, or other representative, has the power to consent to the assignment of this policy, or make any indorsement thereon."

These provisions of the policy are somewhat unusual, as it is customarily permitted to the local agent to consent to an assignment of the policy in view of the peculiar provisions of this policy, the question naturally suggests itself as to whether, for the purposes of waiver, the knowledge of the agent of the incumbrances was that of defendant. `However, we need not pursue this question for the reason, as before stated, defendant has never offered to return the unearned premiums. The policy provides that—"

"The company reserves the right to cancel this policy, or any part thereof, by tendering to the assured the unearned premium."

The facts show that about a week after the fire the defendant sent one of its state agents to see plaintiff in an effort to adjust the loss, and at that time he was informed or the existence of these chattel mortgages. An answer in this suit was filed on May 8, 1922, setting up the existence of these mortgages as a defense in the case, and the case was tried on May 12, 1922. Under such circumstances, it is held that defendant is assuming an inconsistent position by contending that the policy is void and at the same time retaining the premiums to which it has no right if its contention is correct. Defendant is therefore estopped to deny that the policy at the time of the fire was valid and in full force and effect, or to say that it has not waived the forfeiture relied upon. Dyer v. American Ins. Co. (Mo. App.) 244 S. W. 964; Jegglin v. W. O. W., 202 Mo. App. 367, 216 S. W. 815; Davis v. Knight and Ladies of Security, 196 Mo. App. 485, 196 S. W. 97; Gold Issue Mining and Milling Co. v. Ins. Co., 267 Mo. 524, 84 S. W. 999.

With reference to the...