Mackey v. Home Ins. Co.

• Decision Date: 27 May 1926
• Docket Number: No. 4051.,4051.
• Parties: MACKEY et al. v. HOME INS. CO. OF NEW YORK.
• Court: Missouri Court of Appeals

284 S.W. 161

MACKEY et al. v. HOME INS. CO. OF NEW YORK.

No. 4051.

Springfield Court of Appeals. Missouri.

May 27, 1926.

Appeal from Circuit Court, Webster County; C. H. Skinker, Judge.

Action by Caleb M. Mackey and another against the Home Insurance Company of New York. Judgment for plaintiffs, and defendant appeals. Affirmed conditionally.

M. A. Fyke, Fenton Hume and Harry A. Hall, all of Kansas City, for appellant.

Seth Conrad, of Marshfield, and Allen & Allen, of Springfield, for respondents.

COX, P. J.

Action upon a fire insurance policy. Plaintiff recovered, and defendant appealed.

The plaintiffs were owners of a stock of goods and fixtures in a store at Caddo in Webster county. A policy in defendant company was secured by them from the agent of defendant in Springfield, Mo. The amount of the policy was $2,300 on the goods and $175 on the fixtures.

The petition was in the usual form and alleged vexatious delay and asked judgment for the amount of the policy and 10 per cent. damages under the statute and $250 attorney's fee. The answer set up false and fraudulent representations in the application for the insurance and a failure to comply with the ironsafe clause of the policy, which required the assured to keep books showing sales, purchases, etc., and to keep such books in an iron safe at night and when the store was not open for business, or to keep said books in some safe place away from the store. The reply was a general denial and an allegation of waiver of the iron-safe clause.

On the question of misrepresentations in the application for insurance, plaintiffs' testimony was to the effect: That they made no representations. That when they applied to defendant's agent for the insurance he was busy and said he did not then have time to fill out the application, but told them to sign an application and he would fill it out later. This they did. That they made no statement to the agent about the matters alleged to be misrepresented. This was denied by the agent of defendant. That issue was properly submitted to the jury, and their verdict binds us.

It was conceded that plaintiffs did not keep an iron safe in the store, but they relied upon a waiver of that clause in the policy by defendant. The evidence of plaintiffs on that question tended to show that when they applied for the insurance, and after the application had been signed in blank by them, the agent asked if they had an iron safe, and they told him they did not and did not intend to keep one. The policy was later sent to them, and shortly thereafter they paid the premium to this same agent. All this occurred in September, 1924. The goods insured were burned in February, 1925. This action was begun and made returnable to the September term, 1925, and was tried November 13, 1925. Defendant did not offer to return the premium until the day of the trial.

The testimony as to what was said by plaintiffs to the agent of defendant at the time the application for the policy was made was objected to by defendant on the ground that it was an effort to change the written contract, which was the policy, by parol. If the evidence had been offered for that purpose, defendant would clearly be right, for the policy is the contract between the parties, and it specifically provided that the books showing the state of the business of plaintiffs should be kept in an iron safe, or in some safe place away from the store, as is usually provided in similar policies. That provision in the contract cannot be changed by parol testimony. That evidence, however, was not offered for that purpose in this case, but was offered on the question of waiver. Waiver cannot be based on what occurred before the policy was issued, but that does not mean that no evidence of anything that occurred before the policy was issued can be received. In this case the premium was collected after the policy was issued by the same agent of defendant to whom the statement was made that plaintiff did not have an iron safe in the store and did not intend to keep one. The purpose in offering evidence to show these statements was to show that defendant, through its agent, had `knowledge, at the time the premium was paid, that the iron-safe clause in the policy was not being complied with by plaintiffs at that time. The evidence was admissible for that purpose. There was no contention that the powers of the agent were so limited that he could not bind the company. His knowledge, therefore, would be the knowledge of the company, and the collection and retention of the premium after the delivery of the policy, and with knowledge at the time that the iron-safe clause of the policy was not being complied would amount to a waiver of that clause. Weinberger v. Insurance Co. of North America, 170 Mo. App. 266, 156 S. W. 79; Riley v. American Central Ins. Co., 117 Mo. App. 229, 92 S. W. 1147; Fox v. Insurance Co. (Mo. App.) 268 S. W. 393; Rosenthal Sloan Millinery Co. v. Hanover Fire Ins. Co. (Mo. App.) 219 S. W. 669.

This policy was issued September 25, 1924. The premium was paid shortly thereafter. The fire occurred February 4 or 5, 1925. Notice of the fire was given defendant's agent the next day and formal proofs of loss were furnished in due time. This suit was filed returnable to the September term, 1925, and was tried November 13, 1925. No offer to return the premium was made until the day of the trial. According to plaintiffs' testimony, the premium was received by defendant's agent soon after the policy was issued in September, 1924, and with knowledge on his part at the time that the plaintiffs were not complying with the terms of the iron-safe clause of the policy in so far as it required them to keep the books in an iron safe. This premium was retained by defendant until November 13, 1925, a period of more than one year after accepting the premium with knowledge that the terms of the policy in relation to the iron safe were not being complied with by plaintiffs. We are of the opinion that under the facts shown in this case, if the receipt of the premium by defendant's agent did not, in and of itself, amount to a waiver of that part of the iron-safe clause, certainly the retention of the premium by defendant for more than one year did amount to such a waiver. A waiver once attached cannot thereafter be withdrawn. Ball v. Royal Ins. Co., 129 Mo. App. 34, ...