Lingenfelter v. The Phoenix Ins. Co.

• Decision Date: 09 November 1885
• Citation: 19 Mo.App. 252
• Parties: J. M. LINGENFELTER, Respondent, v. THE PHŒ NIX INSURANCE COMPANY, OF HARTFORD, CONNECTICUT, Appellant.
• Court: Kansas Court of Appeals

19 Mo.App. 252

J. M. LINGENFELTER, Respondent, v. THE PHΠNIX INSURANCE COMPANY, OF HARTFORD, CONNECTICUT, Appellant.

Court of Appeals of Missouri, Kansas City.

November 9, 1885

APPEAL from Nodaway Circuit Court, HON. H. S. KELLEY, Judge.

Affirmed.

Statement of case by the court.

The defendant, a foreign insurance corporation, in January, 1882 and long prior, had established, at Maryville, in Nodaway county, in this state, an agency under the management and control of one William H. Hubert. His power of attorney dated February 27, 1871, in the form of a letter, authorized him to receive proposals for insurance against loss by fire and to make insurance policies of said company, to be countersigned by said agent, and to renew the same; to assent to assignments, or transfers, and to do all things and matters pertaining to said appointment that shall be given him in charge by the company. As such general agent he did business for said company in said county. Burlington Junction is a town of said county about fifteen miles from Maryville. The company, at the time in question, had no local agent at Burlington Junction. About June or July, 1881, Hubert, being anxious to have the defendant company specially represented and its interests promoted at Burlington Junction, requested one W. A. Burdick to act for him there. Aside from the evidence of said Burdick, as to certain parol instructions, etc., given him by Hubert, on the fifteenth day of July, 1881, Hubert sent him the following letter:

" Mr. Burdick,

DEAR SIR: I send you applications, also Phœ nix, of Hartford. If Gay has not a recording agency for the Phœ nix, fill out Phœ nix applications and send to me, same as you would for any other company. I send you small note book, with changes marked in ink. Do the best you can until opportunity offers for full agency, then I will help you all I can by way of recommend.

Respectfully yours,

W. H. HUBERT.

P. S. When you fill out applications, sign them as solicitor for me."

After which, Burdick solicited applications for Hubert in behalf of the defendant company, and sent him several applications, which were accepted by Hubert, and policies issued thereon.

Burdick and Hubert differ in their testimony as to whether Hubert reserved the right, and, in fact, did make changes in the applications before issuing the policies, as to the date from which the risk attached, Burdick contending that Hubert accepted them as specified in the applications, and Hubert contending that he made changes.

After some negotiations, on the thirtieth of January, 1882, plaintiff was induced to make application through Burdick for insurance in the defendant company, which resulted in an application being filled out on one of the blanks furnished by Hubert. This application specified the amount of premium, and stated that the risk should run for one year, beginning at noon, January 30, 1882. The premium was paid partly in money to Burdick, and partly in plaintiff's due bill--Burdick giving a receipt in full for the premium. This application is signed: " W. H. Hubert, agent." Burdick mailed it to Hubert so that, by due course of mail, it should have reached Hubert by one or two o'clock, p. m., January 31. But Hubert testified that he did not receive it until about five o'clock, p. m., of that day.

Burdick also testified that it was his custom to remit the premiums to Hubert the last of the month following its receipt.

The storehouse, which was the subject of the insurance, burned down on February 1, following, about one or two o'clock, a. m. Hubert claims that he did not examine the application and pass on it until the morning of the first of February, after the fire, and before he had notice of the fire. The application he forwarded to defendant, and when introduced at the trial had the following endorsements thereon, made by Hubert:

" Commences February 1, 1882. Expires February 1, 1883. W. A. Burdick, Solicitor, Burlington Junction. W. H. Hubert, agent, Maryville."

There was much evidence, as to other matters, the material portions of which are noticed in the opinion.

The defendant refusing to settle the loss, on the twenty-ninth of May, 1882, the plaintiff brought this action. The petition makes the following averments:

" 1. That defendant is a corporation, duly created by and under the laws of Connecticut.

2. That on, to-wit, the thirtieth day of January, A. D., 1882, plaintiff was the owner of lot number thirteen (13), in block number nineteen (19), in the town of Burlington Junction, in Nodaway county, Missouri, and also of the improvements thereon, to-wit, a two-story metal roof frame store building, with a one-story frame wareroom at the rear end of same; and was the owner thereof at the the time of its insurance and destruction by fire, as hereinafter mentioned.

3. That on the thirtieth day of January, A. D., 1882, the plaintiff applied to defendant, through their agent in said Nodaway county, Missouri, for insurance against loss or damage by fire, upon said frame store building, situated on lot aforesaid, in said town of Burlington Junction, in Nodaway county, Missouri, and the defendant, by their said agent, then and there agreed to become an insurer on said metal roof frame store building, for one year from that day, for one thousand dollars, at a premium of twenty-seven dollars and fifty cents, and that the said defendant would execute and deliver to plaintiff a policy, issued by them on such risks, for the sum of one thousand dollars, for the term of one year from said day.

4. That plaintiff then and there paid to defendant said premium, to-wit, the sum of twenty-seven dollars and fifty cents, pursuant to said agreement and insurance as aforesaid.

5. That it was then and there agreed between the plaintiff and the defendant, that the said insurance should be binding on the defendant for the term of one year from the time of the receipt of said premium, for the sum of one thousand dollars, and the defendant then and there, in consideration of the premises, agreed with the plaintiff to execute and deliver to him, within a reasonable and convenient time, a policy in the usual form of policies issued by said defendant, insuring said building in the sum of one thousand dollars against loss or damage by fire, the said insurance to commence at noon of said day, the time of the receipt of said premium, and to continue for the said term of one year.

6. That after the insurance so made, and after the said promise to execute and deliver a policy in conformity thereto and within the said term of one year, for which plaintiff was so insured, to-wit, on the first day of February, A. D., 1882, the said building mentioned and so insured, was totally destroyed by fire.

7. That the plaintiff duly fulfilled all the conditions of said agreement on his part, and faithfully complied with all the requirements of said insurance contract; that he gave the defendant due notice and proof of the fire loss aforesaid, pursuant to the terms of their contract with plaintiff, and demanded payment of said sum of one thousand dollars, the amount of said loss covered by the insurance aforesaid.

8. That the defendant has failed and refused, and still fails and refuses to pay said sum of one thousand dollars, due plaintiff by reason of said loss by fire, under said contract of insurance aforesaid.

Wherefore plaintiff prays judgment for the sum of one thousand dollars, with interest, and for costs of suit."

The answer was a special denial of each material allegation of the petition, except as to the defendant being a non-resident corporation.

The cause was tried before the court sitting as a jury. At the conclusion of the evidence the court gave the following declarations of law, as requested by plaintiff:

" 1. It is admitted that the defendant is a corporation as alleged in the petition of plaintiff."

" 2. If the court finds from the evidence in this case that one W. H. Hubert, of Maryville, Nodaway county, Mo., was the agent of defendant, on the thirtieth day of January, A. D., 1882, and for a long time prior thereto, and since, authorized and empowered to receive proposals for insurance against loss or damage by fire, and to make insurance by policies of defendant, to be countersigned by himself as agent, and to renew the same, to assent to assignments or tranfers, and to do all things and matters necessary, pertaining to such authority and power, within the territory of his agency; and if the court finds further, that the town of Burlington Junction, in Nodaway county, Mo., was, at said date, within the territorial limits of said agency of said W. H. Hubert; and, if the court further finds, that said W. H. Hubert, as such agent, did authorize one W. A. Burdick to solicit applications for insurance for defendant, at said town of Burlington Junction, in the name of, and as solicitor for, said W. Hubert, as the agent of defendant, to be by said Burdick forwarded to said agent, Hubert, for issuance of policy of insurance in pursuance of such application; and, if the court further finds, that said W. A. Burdick, as such solicitor for, and in the name of said W. H. Hubert, on the date aforesaid, did solicit and obtain the application of plaintiff, offered in evidence in the trial of this case, and collected for Hubert the premium therein stipulated and agreed upon, for insurance on plaintiff's said premises, for one year from noon of said day, in the sum of one thousand dollars, and that said application for insurance was immediately forwarded to W. H. Hubert, at Maryville, Mo., and was received in due course of mail, to-wit, on the thirty-first day of January, 1882, the court should find for plaintiff, in the sum of one thousand dollars, with

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