Loduca v. St. Paul Fire & Marine Ins. Co.
| Decision Date | 01 June 1937 |
| Docket Number | No. 24225.,24225. |
| Citation | 105 S.W.2d 1011 |
| Court | Missouri Court of Appeals |
| Parties | LODUCA et al. v. ST. PAUL FIRE & MARINE INS. CO. |
Appeal from Circuit Court, Audrain County; William C. Hughes, Judge.
"Not to be published in State Reports."
Action by Joseph Loduca and another against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiffs, and defendant appeals.
Affirmed.
Anderson, Gilbert, Wolfort, Allen & Bierman, of St. Louis, and Hollingsworth & Francis, of Mexico, Mo., for appellant.
Cullen, Storckman & Coil, of St. Louis, and Rodgers, Buffington & Adams, of Mexico, Mo., for respondents.
SUTTON, Commissioner.
This is an action on a fire insurance policy, issued by defendant to plaintiffs on May 10, 1932, in the sum of $3,000, covering on a brick building, situate at 3317 McCausland avenue, in the city of St. Louis.
Defendant in its answer alleges, by way of affirmative defenses, that by the terms of the policy it is provided that the policy shall be void if the insured then had or should thereafter procure any other insurance on the property, and that there was, at the time of the delivery of the policy and at the time of the fire, other insurance on the property in the amount of $6,000; that the policy further provides that it shall be void in case of any fraud or false swearing by the assured touching any matter relating to the insurance or the subject-matter thereof whether before or after the loss; and that plaintiffs falsely and fraudulently represented to defendant, at the time of the issuance of the policy, that there was no other insurance on the property.
The cause was tried to a jury. There was a verdict for plaintiffs for $3,000, and judgment was given accordingly. Defendant appeals.
Defendant assigns error here for the refusal of its instruction in the nature of a demurrer to the evidence. Defendant, in support of this assignment, contends that the policy in suit was avoided by other insurance. Plaintiffs counter with the contention that the evidence shows a waiver of the policy provision against other insurance.
It is not disputed that at the time of the issuance of the policy in suit there was other insurance on the property in the amount of $6,000, which remained in effect at the time of the fire. It appears that James J. DeMartini, who held a deed of trust or mortgage on the property for $2,500, procured the other insurance, which was made payable to the plaintiffs as owners and to James J. DeMartini as mortgagee according to their respective interests.
It was admitted at the trial that W. E. Gordon, who signed and issued the policy in suit, was a general agent of the defendant.
Pertinent to the question of waiver, plaintiff Rose Loduca testified, as follows:
It is well-settled law that a policy provision against other insurance is waived where the insurer's agent who issued the policy had notice at the time that there was other insurance. Thompson v. Traders' Ins. Co., 169 Mo. 12, 68 S.W. 889; Hayward v. National Ins. Co. of Hannibal, 52 Mo. 181, 14 Am.Rep. 400; Dubinsky v. Hartford Fire Ins. Co. (Mo.App.) 196 S.W. 1045; Rudd v. American Guarantee Fund Mutual Fire Ins. Co., 120 Mo.App. 1, 96 S. W. 237; Boyle v. United States Fire Ins. Co. (Mo.App.) 250 S.W. 641; Fields v. Queen Ins. Co., 140 Mo.App. 168, 120 S.W. 700; Polk v. Western Assurance Co., 114 Mo.App. 514, 90 S.W. 397.
A forfeiture of rights under an insurance policy is not favored by the law, especially where, as here, a forfeiture is sought after the happening of the event giving rise to the insurer's liability. Actual knowledge of the breach of the policy provision relied on for forfeiture is not ordinarily essential to establish a waiver of the provision. It will as a general rule suffice that the insurer had information, which, if pursued with reasonable diligence, would have led to the discovery of the breach. Garvin v. Union Mutual Life Ins. Co. (Mo.App.) 79 S.W.(2d) 496; Edmonds v. Modern Woodmen of America, 125 Mo.App. 214, 102 S.W. 601; Brummer v. National Life & Accident Ins. Co. (Mo.App.) 59 S.W. (2d) 781; Bailey v. Liverpool, London & Globe Ins. Co., 166 Mo.App. 593, 149 S.W. 1169; Renshaw v. Missouri State Mutual Fire & Marine Ins. Co., 103 Mo. 595, 15 S.W. 945, 23 Am.St.Rep. 904; Supreme Lodge v. Kalinski, 163 U.S. 289, 16 S.Ct. 1047, 41 L.Ed. 163; Shoop v. Fidelity, etc., Co., 124 Md. 130, 91 A. 753, Ann. Cas.1916D, 954; Skinner v. Norman, 165 N.Y. 565, 59 N.E. 309, 80 Am.St. Rep. 776; Huestess v. South Atlantic Life Ins. Co., 88 S.C. 31, 70 S.E. 403; Metcalf v. Mutual Fire Ins. Co., 132 Wis. 67, 112 N.W. 22; North British & Mercantile Ins. Co. v. Steiger, 124 Ill. 81, 16 N.E. 95; Stanley v. Belt Automobile Indemnity Ass'n, 112 Kan. 412, 210 P. 1096; Life, etc., Ins. Co. v. King, 137 Tenn. 685, 195 S.W. 585; Arkansas Mutual Fire Ins. Co. v. Claiborne, 82 Ark. 150, 100 S.W. 751.
We conclude that the evidence in the present case was ample to warrant the submission of the question of waiver to the jury, and the instruction in the nature of a demurrer to the evidence was properly refused.
Defendant has brought to our attention certain answers which plaintiff Rose Loduca admitted, on cross-examination at the trial, that she made to questions propounded to her on examination by the insurance companies prior to the trial, to the effect that, at the time defendant's agent solicited her insurance, she did not know that the mortgagee had any insurance to protect her and knew nothing about the insurance policies he had on the property. Defendant insists that these answers destroy the probative effect of her testimony at the trial that she informed defendant's agent, when he solicited her insurance, that the mortgagee had procured insurance on the property, but that she did not know whether he had enough to protect her or not. To this we cannot agree. These answers, made by plaintiff on examination by the insurance companies prior to the trial, must be taken in the light of the answers she made to the questions propounded to her on cross-examination at the trial. Thus, when asked, on cross-examination at the trial, if she did not make the answer, in her examination by the insurance companies prior to the trial, that she did not know that the mortgagee had any insurance to protect her, she answered: ...
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