Lehmann v. Hartford Fire Ins. Co.

• Decision Date: 02 June 1914
• Docket Number: No. 13669.,13669.
• Citation: 167 S.W. 1047,183 Mo. App. 696
• Parties: LEHMANN v. HARTFORD FIRE INS. CO.
• Court: Missouri Court of Appeals

167 S.W. 1047

183 Mo. A. 696

LEHMANN v. HARTFORD FIRE INS. CO.

No. 13669.

St. Louis Court of Appeals. Missouri.

June 2, 1914.

1. EVIDENCE (§ 213)—ADMISSIONS—OFFER OF COMPROMISE.

Statements of the insurer's adjuster that they could give the insured only 50 cents on the dollar were not inadmissible as an effort to compromise, where they were made not in an effort to compromise, but in an interview looking to the adjustment of the loss, preparatory to making the necessary proofs, and prior to the bringing of suit.

2. INSURANCE (§ 379)—AVOIDANCE OF POLICY FOR MISREPRESENTATIONS—USE OF BUILDING.

An insurer was not released, because a paster attached to the policy when the property was moved stated that it was located in a building used as a dwelling, whereas it was a mercantile building, where the insured stated the true facts to the agent from whom he procured the policy, when the paster was attached, provided such agent was the agent of the insurer.

3. INSURANCE (§ 76)—ACTIONS ON POLICIES —SUFFICIENCY OF EVIDENCE.

Evidence in an action on a fire insurance policy held to warrant a finding that a broker, through whom the insurance was procured, was the agent of the insurer, rather than the insured.

4. INSURANCE (§ 602)—ACTIONS ON POLICIES —SUFFICIENCY OF EVIDENCE.

Evidence in an action on an insurance policy held to warrant a finding of vexatious delay in payment of the loss, for which damages of 10 per cent. of the loss and an attorney's fee of $100 was assessed under Rev. St. 1909, § 7068, authorizing the same.

5. INSURANCE (§ 602)—ASSIGNMENT OF POLICY —DAMAGES FOR VEXATIOUS DELAY.

A claim for damages for vexatious delay of the insurer in paying a loss, under Rev. St. 1909, § 7068, providing that in an action on a policy the court may in such case allow the plaintiff damages, could be assigned along with the insured's interest under the policy after the loss; the right to recover not being confined by the statute to the insured.

6. COSTS (§ 260)—DAMAGES FOR VEXATIOUS APPEAL.

The penalty of 10 per cent. for a vexatious appeal will not be assessed against an insurance company, though seeking to avoid liability on the narrow technicality that the building where the property was located was designated as a dwelling, instead of a mercantile building, where the mistake was made by its agent's clerk, and it had been sufficiently penalized by the judgment below for damages and attorney's fees.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Action by John S. Lehmann against the Hartford Fire Insurance Company on an insurance policy, the insured's interest under which had been assigned to plaintiff. Judgment for plaintiff, and defendant appeals. Affirmed.

Barclay, Fauntleroy, Cullen & Hay, of St. Louis, for appellant. Lehmann & Lehmann, of St. Louis, for respondent.

REYNOLDS, P. J.

One White, desiring to procure insurance on certain household goods, situated in his residence in the city of St. Louis, asked one Ver Steeg, a real estate agent, to procure the insurance for him. Ver Steeg went to one Klobasa, an insurance agent or broker, and applied for the insurance. It appears that Klobasa, for some reason and following a custom prevailing between insurance agents and brokers in St. Louis, went to one Schulte, who was also engaged in the insurance business and asked him to write the policy in one of the companies for which Schulte was agent. Schulte gave Klobasa a policy in the Hartford Fire Insurance Company, insuring household and kitchen furniture belonging to White and his family, the policy to cover the property "while contained in a frame building occupied as a dwelling" by White and situated at 5936 Elmbank avenue in the city of St. Louis, the amount being $350. Klobasa delivered this policy to Ver Steeg, who delivered it to White, White paying the premium. The policy was for the term of three years from the 15th of April, 1910. Intending to remove to Richmond Heights, in St. Louis county, White went to Ver Steeg and asked to have the policy transferred so as to cover his household effects in the new location. Ver Steeg referred him to Klobasa, whose name appeared upon the back of the policy as the agent or broker, the policy, however, countersigned by Schulte as agent for the insurance company. Going to the office of Klobasa, White told the young man in charge of the office of his intention to remove from the city into the county and told him that he wanted the policy transferred out to 31 Sunset avenue, Richmond Heights, in St. Louis county; that he had moved to that place. The young man asked him what kind of a place it was and White told him it was a two-story house and that there was a store room on one floor and that he and his family lived upstairs, occupying one room on the ground floor as a kitchen. The young man told White that it would cost him a little more money, to which White replied, "All right, I will have to have the policy." That was all that was said between them, according to White, and White left the policy with this young man in Klobasa's office to have the transfer indorsed on it. The foregoing is the testimony of White and it was not contradicted. When the policy came back to White, which it apparently did through Klobasa's office, it had what is called a "paster" upon it, which acknowledged the receipt of $1.40 additional premium on the policy of the Hartford Insurance Company, "being an increase of rate hereon of 50 cents (rate as increased being $1.50), the assured hereunder having moved into the frame dwelling house, situated No. 31 Sunset avenue, Richmond Heights, St. Louis county, Missouri." This was signed, "F. J. Schulte, Agent." It appears that it was filled out in Klobasa's office by him or his employés and sent to Schulte, who signed it as above and returned it to Klobasa.

It appears from the testimony in the case, as before noted, that Schulte was the agent of the Hartford Fire Insurance Company, and that Klobasa was an insurance agent and broker and also the manager of some other insurance company, and agent for other companies, and that he and Klobasa were in the habit of exchanging business under some arrangement by which they divided commissions. Under this, if one of them received an application for insurance which for any reason he did not care to write in his own company, he turned it over to the agent of some other company with whom he had friendly relations and that agent would countersign and issue a policy from his own company, turning it over, however, for delivery to the agent from whom the business had come to him. It was under this arrangement that Schulte wrote the policy in the Hartford Fire Insurance Company, turned it over to Klobasa, and Klobasa delivered it to White. On the outside fold of the policy, in large type appears the name of Klobasa, as "manager," giving his office address.

Testifying as a witness for defendant, Mr. Schulte was asked by the court this: "Now as a matter of fact was Klobasa acting as agent for your company?" He answered, "Yes, sir." By the Court:

"Did he act for your company as agent in soliciting insurance? A. Well, not directly; no, sir. Q. The fact of the matter seems to be that he represented...