Malo v. Niagara Fire Ins. Co. of New York

• Decision Date: 01 March 1926
• Docket Number: No. 15541.,15541.
• Citation: 282 S.W. 78
• Parties: MALO v. NIAGARA FIRE INS. CO. OF NEW YORK.
• Court: Missouri Court of Appeals

282 S.W. 78

MALO v. NIAGARA FIRE INS. CO. OF NEW YORK.

No. 15541.

Kansas City Court of Appeals. Missouri.

March 1, 1926.

Rehearing Denied April 5, 1926.

Appeal from Circuit Court, Boone County; D. H. Harris, Judge.

"Not to be officially reported."

Action by H. C. Malo against the Niagara Fire Insurance Company of New York. Judgment for plaintiff, and defendant appeals. Affirmed.

McBaine & Clark, of Columbia, for appellant.

North T. Gentry, of Jefferson City, for respondent.

BLAND, J.

This is an action upon a fire insurance policy. There was a verdict and judgment in favor of plaintiff in the sum of $750, together with a penalty of $50 and $100 attorney's fee for vexatious refusal to pay. Defendant has appealed.

The facts show that the policy was dated the 11th day of March, 1921, and expired three years after its date. It covered household goods and wearing apparel belonging to plaintiff, the assured, and the members of his family while located at No. 12 Price avenue, in the city of Columbia. In January, 1922, plaintiff and his family moved their residence to No. 15 Allen place in said city and the property insured was transferred to that place. Plaintiff testified that he verbally notified Mr. Catron, of Smith & Catron, of the removal of the property insured, and that Catron verbally consented to its removal on behalf of the defendant, and made some kind of a notation in reference to the matter. Smith & Catron were the local agents of the defendant, at Columbia, and solicited insurance, countersigned and delivered policies, and collected premiums for it.

About 11:30 a. m. of March 7, 1924, there was a fire, resulting in the loss of the furniture and wearing apparel. Mr. Catron was called over the telephone by plaintiff's wife on the day of the fire, and notified of the loss, and he informed her that the insurance had expired. The next day plaintiff reached home, having been away at the time of the fire, and called Catron over the phone, and the latter told him that his policy had expired. Plaintiff then called personally upon Catron. who looked into his insurance record book and told plaintiff that his policy had expired on March 1, 1924. In August, 1924, the policy was found in a drawer of an old hat rack that had been saved from the fire, and it was then discovered that the policy did not expire until March 11, 1924, four days after the fire. Plaintiff again went to see Catron, who stated that he was positive that the policy had expired, and when the policy was produced said, "That's funny." The agent wrote the insurance company about the matter, and an adjuster was sent. In the presence of plaintiff the adjuster asked Catron if there had been any notice of the removal of the goods, no notice having been indorsed on the policy. According to plaintiff's testimony, Catron said that he did not know whether there had been a notice or not. Plaintiff said that he had given Catron notice, and Catron said, "You might have done it, * * * but I have no recollection of it." The agent wanted plaintiff to sign a nonwaiver agreement, but plaintiff, upon consulting his attorney, refused to do so. The adjuster said, "Well, my hands are tied, and we will do nothing further about it." Nothing further was done, and this suit was brought.

Catron, testifying for the defendant, denied that plaintiff had informed him that the property had been removed to No. 15 Allen place. He further testified that he had never been notified of the fire until in August, 1924, at the time plaintiff brought the policy to him; that he had never told any one that the policy had expired prior to the fire, and that when plaintiff came to him with the policy he wrote to the company concerning the matter. The company replied that it had referred the matter to its state agent, and that an adjuster would be sent. The adjuster came, and on examining the policy called attention to the fact that it did not show that any permission had been given to remove the goods, and "made objection as to the insurance policy not showing a removal permit." The adjuster did not admit or deny liability, but asked plaintiff to sign a nonwaiver agreement, which plaintiff refused to sign, and the adjuster left. No blank proofs of loss were requested by or offered to plaintiff at any time.

The answer consisted of a general denial and an allegation that plaintiff had other insurance on the furniture without the consent of the defendant indorsed on the policy, which was alleged to have been a violation of the terms of the policy. It pleaded a breach of the terms of the policy providing for immediate notice in writing in case of fire, and proof of loss within 60 days thereafter, and it further pleaded that the property was removed from the place in which it was insured to No. 15 Allen place without the consent of the defendant indorsed upon the policy. The reply was a general denial, and contained an admission of other insurance, but alleged that the same was procured with the knowledge and consent of defendant. It admitted that written notice was not furnished and proof of loss was not made within 60 days, but alleged that plaintiff immediately after the fire notified defendant's agent thereof, who told plaintiff that the policy had expired, and that defendant owed plaintiff nothing. It further alleged that defendant did not furnish plaintiff with any blank proof of loss. It pleaded that by reason of all of these things defendant had waived the giving of the notice and the making of proof of loss. It admitted that the furniture had been moved, but alleged that defendant's agent knew of such removal and verbally consented thereto, as was his custom, and promised to make proper indorsement upon his insurance record book, and that he took no steps to cancel the policy, by reason of which "defendant has waived that part of its policy which required consent of the defendant [to the removal of the goods] to be indorsed thereon in writing."

The policy provided that, if fire occurred, insured should give immediate notice of any loss in writing to the company, and that he should make proof of loss within 60 days. Plaintiff's instruction No. 1 authorized a verdict for him upon a finding of the oral notice of the loss testified to by plaintiff and his wife, after submitting the other necessary facts to be found by the jury in order to entitle plaintiff to recover. Plaintiff's instruction No. 3 told the jury that —

If "* * * the defendant's agent at Columbia, or defendant's adjuster, had actual knowledge of the plaintiff's loss and claim and thereafter refused to pay plaintiff anything by reason of the destruction of his personal property by fire and denied all liability by reason of such loss for the sole alleged reason that plaintiff's property had been removed to a place other than that named in the policy, then the defendant has waived that part of its policy which required the plaintiff to give notice in writing of such fire immediately after said fire."

These two instructions are complained of by the defendant. It will be noted that plaintiff's instruction No. 3 permitted the jury to find a waiver of written...