McNabb v. Niagara Fire Ins. Co.

• Decision Date: 11 November 1929
• Citation: 22 S.W.2d 364,224 Mo.App. 396
• Parties: W. F. McNABB, RESPONDENT, v. NIAGARA FIRE INSURANCE COMPANY, APPELLANT
• Court: Kansas Court of Appeals

22 S.W.2d 364

224 Mo.App. 396

W. F. McNABB, RESPONDENT, v. NIAGARA FIRE INSURANCE COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

November 11, 1929

Appeal from the Circuit Court of Putnam County.--Hon. L. B. Woods Judge.

AFFIRMED (conditionally).

Judgment affirmed.

Clare Magee and P. M. Marr for respondent.

Slaymaker Merrell, Ward & Lock, Leahy, Saunders & Walther and Lyon Anderson for appellant.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is a suit based upon an alleged oral contract of insurance. Defendant is a corporation created under the laws of the State of New York, duly licensed and authorized to do business in the State of Missouri, and is engaged in writing fire insurance.

On December 28, 1927, plaintiff made application to one George A. Tate, defendant's agent at Unionville, Missouri, for insurance on his personal property located on his father's farm, of which plaintiff was a tenant. An application was signed, listing the following property: $ 600 on grain and seeds of all kinds; $ 400 on harness, machinery and other personal property named; $ 200 on cattle and $ 200 on horses--a total of $ 1400. At the time the application was made plaintiff paid defendant's agent a stipulated premium of $ 21 for one year's insurance for which a receipt was given.

Before the policy was issued, and on January 1, 1928, the building in which the property listed in the application was situated, excepting the live stock, was destroyed by fire, to the value of approximately $ 827.85. A timely notice in writing, by registered mail, was given defendant and defendant's agent was notified as well. No written policy of insurance was ever delivered to plaintiff. On the refusal of defendant to pay the amount of the loss on demand, this suit was instituted.

The petition alleges the corporate status of defendant and that George A. Tate was, and is, the agent and representative of defendant to solicit insurance and to countersign policies issued by it, and as such, maintains an office in Unionville, Putnam county, Missouri; that plaintiff is a resident of Jackson Township, Sullivan county, Missouri, and is a tenant of certain real estate therein situated, and in possession of a certain barn on said premises in which were stored grain, seeds, harness, machinery and other personal property belonging to and owned by plaintiff; that on December 28, 1927, he made application to said G. A. Tate, defendant's agent at Unionville, Missouri, for insurance on the above mentioned property and other personal property of plaintiff; that plaintiff signed and executed an application for the sum of $ 1400 fire insurance in defendant company, as follows: $ 600 on grain and seeds of all kinds stored in said barn; $ 400 on harness, machinery and other personal property stored in said building; $ 200 on cattle and $ 200 on horses; that plaintiff paid to said agent the sum of $ 21, premium, and the agent duly executed and delivered to plaintiff a receipt therefor, the agent stating at the time that said property was insured from and after that date, and that a policy of insurance would be issued and delivered to him by said agent, within a short time thereafter; that it was expressly agreed between plaintiff and said agent at the time of making application and paying said premium that the insurance should commence and be binding upon defendant from the time of the receipt of the premium; that by the terms and conditions of the policy agreed to be written, said policy was to commence at 12 o'clock noon on December 28, 1927, and continue until 12 o'clock noon on December 28, 1928, and to insure plaintiff's property as aforesaid against loss or damage by fire to the amount of $ 1400, in consideration of the premium of $ 21, paid as aforesaid; that the terms and conditions in said policy should and would conform to the standard fire insurance policies provided by the laws of Missouri; that on January 1, 1928, at about one or two o'clock in the morning, while said agreement was in full force and effect, the building in which the property, except the live stock, was situated, was destroyed by fire; that the property so destroyed was of greater value than insured for and that a loss of $ 827.85 was thereby sustained; that due notice was given defendant and its agent; that defendant failed and refused to furnish blank proofs of loss and has thereby waived such proofs of loss; that no policy of insurance was ever delivered to plaintiff as agreed; that demand was duly made of defendant for payment of said loss, but that defendant wholly failed and refused to pay same; that such delay on the part of defendant was and is vexatious and without reasonable grounds, and by reason thereof plaintiff has been compelled to, and has, employed an attorney to institute suit; that a reasonable attorney's fee therefor is $ 300. Judgment is asked in the sum of $ 827.85, with interest at six per cent from January 1, 1928, and for ten per cent damages and an attorney's fee of $ 300.

The answer admits the corporate status of defendant as alleged, and that it is authorized to transact business in the State of Missouri, and generally denies each and every other allegation in the petition. As affirmative defense, the answer pleads that the application alleged in the petition was in writing and was delivered to G. A. Tate to be forwarded to defendant at its home office in Indianapolis, Indiana, and that said application contained the following clause:

"Notice is hereby accepted by the applicant named herein, and it is understood and agreed hereby that no agent, subagent, solicitor or other representative of said Niagara Fire Insurance Company, except only the manager of the farm department of said company at Indianapolis, Indiana, has any authority to make any contract of insurance or to insure on behalf of said company or to waive, modify, alter or discharge any policy or any condition of any policy issued by said company, or to dispense with the performance of any warranty, provision or condition of any such policy, either before or after any loss under any policy, and the applicant or applicants agree that said company shall not be bound by any statement made by the applicant or applicants to any agent, subagent, solicitor or other representative of said company and not contained in this application, nor by any knowledge possessed by any such agent, subagent, solicitor or other representative, no matter how, when or from whom such knowledge shall be acquired."

The answer alleges that said application was never accepted by defendant, but was rejected, and that there never was a policy of insurance issued thereon to plaintiff, nor was there any contract of insurance entered into between plaintiff and defendant at any time; denies that G. A. Tate had authority to bind defendant by any promise to insure; denies that said Tate was an agent authorized by it to effect contracts of insurance for it, all of which plaintiff well knew; denies that said Tate stated to plaintiff at the time, that said property would be and was insured in any sum from and after the date of said application; denies that it was agreed between plaintiff and defendant that the insurance should begin and be binding on defendant from December 28, 1927, as alleged.

As further affirmative defense the answer alleges that the application presented by plaintiff was for a policy of the kind and form usually executed and issued by defendant on farm property in Missouri, and that plaintiff contemplated at the time of his application that any contract which might result from defendant's acceptance of said offer would be subject to the policy usually issued by defendant, and that the same was of the standard form and contained the following clause:

"This policy is based upon the valuations and representations contained in the insured's application and diagram of even number herewith, which the insured has signed and submitted to the company, and which are hereby made warranties and a part hereof; and if...