Miller v. Insurance Co. of North America

• Decision Date: 12 April 1904
• Citation: 106 Mo. App. 205,80 S.W. 330
• Parties: MILLER v. INSURANCE CO. OF NORTH AMERICA.
• Court: Missouri Court of Appeals

80 S.W. 330

106 Mo. App. 205

MILLER v. INSURANCE CO. OF NORTH AMERICA.

St. Louis Court of Appeals. Missouri.

April 12, 1904.

FIRE INSURANCE—POLICY—REMOVAL—INDORSEMENT OF CONSENT—WAIVER—EVIDENCE—SUFFICIENCY—AUTHORITY OF AGENT—PROOF.

1. In an action on a fire insurance policy, which was defended on the ground that the property had been removed from the place it was insured without the insurer's consent, plaintiff introduced a letter from the insurer, in which it was stated: "Had you asked us to make an indorsement on the policy permitting removal of your household goods to the country, we would have positively refused to make the indorsement, as we always do, for we do not insure property located in the country." Held, that by introducing the letter plaintiff showed the fact to be that the insurer's agent was without authority to agree to transfer the insurance.

2. In an action on a policy of fire insurance in which the insurance was written on three separate items but the premium was a lump sum, a waiver of forfeiture of the policy as to one of the items by reason of its removal without the insurer's consent indorsed cannot be predicated of a failure to return the unearned premium on such item where two of the items of property insured were not affected by the removal, and there was no proof of what portion of premium was paid for the insurance on the property that was removed.

3. In an action on a policy of fire insurance covering a dwelling, stable, and furniture in three separate items, which was defended on the ground that the furniture had been removed without the insurer's consent indorsed, a waiver of the forfeiture cannot be predicated of the failure to return the unearned premium, where it is shown by plaintiff's evidence that she led the insurer's agent to believe she would have the insurance on the furniture transferred, or procure new insurance, and use the unearned premium, whatever it may have been, to apply in part payment for such transfer or new insurance.

4. In an action on a policy of fire insurance, defended on the ground that the policy was forfeited by reason of removal of the property without the consent of the insurer indorsed, evidence examined, and held insufficient to show that the insurer's agent agreed to transfer the insurance to cover the property after its removal.

Appeal from Circuit Court, Stoddard County; James L. Fort, Judge.

Action by Eugenia F. Miller against the Insurance Company of North America. From a judgment for plaintiff, defendant appeals. Reversed.

Yates, Mastin & Howell, for appellant. Liles & Munger, for respondent.

BLAND, P. J.

On January 26, 1900, the defendant issued its policy of insurance to William Miller, whereby, for a consideration of $36.30, to it paid, it insured said Miller's property against loss or damage by fire for a term of five years as follows: Fifteen hundred dollars on his dwelling house, situated in the city of Dexter; $500 on his household and kitchen furniture, located and contained in said dwelling house; and $200 on his stable. Afterwards, on May 29, 1902, William Miller, with the consent of the defendant company (indorsed on the back of the policy), assigned the same in writing to his wife, the plaintiff herein. In July, 1902, William Miller, with his wife, moved from the city of Dexter to his farm in the country, and moved thereto all the household and kitchen furniture covered by the policy of insurance. On the 2d day of March, 1903, Miller's country house, with the household and kitchen furniture described in the policy sued on, was totally destroyed by fire. The defendant denied any liability on the policy for the loss, and this suit was brought to recover the $500 for which the household and kitchen furniture was insured. The contention of the defendant is that by moving the household and kitchen furniture from the premises where it was situated when insured the contract as to this property was forfeited, according to the terms of the policy. The plaintiff concedes the contention that the insurance did not follow the furniture to the country home of Miller, but contends that defendant waived the forfeiture. The evidence on which plaintiff relies to show a waiver of the forfeiture is: First. That E. C. Mohrstadt (the agent of defendant who issued the policy) knew that plaintiff intended to move the furniture before it was moved, and did not object thereto; knew when it was moved; and did not return or offer to return any part of the premium. Second. That Mohrstadt had been taking care of William Miller's insurance for him, and at Miller's request had kept the policy sued on in his possession until after the fire. Third. The following evidence of William Miller, who testified that he was acting as the agent of his wife, to wit: "Q. When did you first speak to Mr. Mohrstadt about it for your wife? A. It was in January, after I moved all this stuff. Over half of our stuff was left in the house. Q. You never obtained any consent from him beforehand to move the goods? A. No, sir. Q. You never obtained any consent from him to move the goods? A. No, sir. ...