Moore v. Atlantic Mut. Ins. Co.

• Decision Date: 31 March 1874
• Citation: 56 Mo. 343
• Parties: JAMES C. MOORE, Assignee of EDWARD P. TESSON, Appellant, v. THE ATLANTIC MUTUAL INSURANCE COMPANY, Respondent.
• Court: Missouri Supreme Court

56 Mo. 343

JAMES C. MOORE, Assignee of EDWARD P. TESSON, Appellant,

v.THE ATLANTIC MUTUAL INSURANCE COMPANY, Respondent.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

James Tausig, for Appellant.

B. A. Hill, for Respondent.

ADAMS, Judge, delivered the opinion of the court.

This was an action on a policy of insurance, issued by the defendant, to Edward P. Tesson, who originally brought the suit, and becoming bankrupt, it was afterwards prosecuted in the name of the plaintiff as assignee in bankruptcy.

The case has been here before, (40 Mo., 36, and 50 Mo., 112,) and for a more detailed statement, reference may be had to 50 Mo., 112. The written application for insurance which was signed by the agent of Tesson reads as follows: “$5,000 fire insurance wanted for six months on a three or four story brick distillery and machinery, not running; no fire about it; situated entirely detached (nearest building being an office say 100 yards); on the bank of the Mackinaw river, in the town of Forneyville, Woodford county, Illinois, valued at $32,000, privilege of $5,000, other insurance. December 16, 1858. Gable end is frame.

Ed. P. Tesson,

per L. E. Suber, Attorney in fact.”

Brought a letter from Tesson--no plat.

When the application was signed, the agents of both parties were ignorant of the situation of the buildings, and the materials of which they were composed. Certain plats of the premises with their surroundings were at the office of Tesson's agent, which showed that the distillery building was not built of brick, but that the third story was built entirely of wood, and a portion of the distillery building, one story high, sixty feet long and thirty feet wide, was built entirely of wood, &c. On the part of the plaintiff, it was alleged that these plats were to be delivered to defendant's agent as a modification of the written application, and that they were so delivered before the policy was issued to Tesson. On the other hand the defendant denied that such plats were referred to, and denied that any such plats were ever delivered to defendant's agent as alleged. The question whether the plats in dispute were delivered to the agent of the defendant as a modification of the written application, before the policy finally took effect, was the only material issue, and on this issue the evidence was contradictory. The evidence on both sides tended to establish their respective views.

On the part of the plaintiff the court instructed the jury as follows:

“If the jury find from the evidence that said Tesson at the issuing of said policy owned but one distillery at the place named therein, and prior to issuing said policy, said Tesson telegraphed from Peoria, Illinois, to his agent to insure said distillery; that said agent made the application, but stated to defendant's agent that he did not know the description was accurate, and he would bring said plats from his office--from which the description in the application could be made accurate--and he did leave said plats with defendant's agent at defendant's office before the issuing of the policy, and the said plats and the statements were sufficient to fully inform defendant of the form and structure of said distillery and machinery, and materials of which said distillery was composed; and the premium paid for said insurance was reasonably sufficient for insuring the property as represented by said plats; and defendant was not deceived as to the nature of the property insured; and the same was destroyed by fire, about May 13th, 1859, and notice and proof of loss were made to defendant as set forth in the petition, the jury must find for plaintiff.”

On the...