Mt. Leonard Milling Co. v. Liverpool & London & Globe Ins. Co.

• Decision Date: 28 March 1887
• Parties: MOUNT LEONARD MILLING COMPANY, Plaintiff in Error, v. THE LIVERPOOL AND LONDON AND GLOBE INSURANCE COMPANY, Defendant in Error.
• Court: Kansas Court of Appeals

25 Mo.App. 259

MOUNT LEONARD MILLING COMPANY, Plaintiff in Error, v. THE LIVERPOOL AND LONDON AND GLOBE INSURANCE COMPANY, Defendant in Error.

Court of Appeals of Missouri, Kansas City.

March 28, 1887

ERROR to the Saline Circuit Court, HON. JOHN P. STROTHER, Judge.

Affirmed.

Statement of case by the court.

This is an action to recover for loss sustained, alleged to be covered by the provisions of a policy of insurance. The policy is dated June 2, 1884. By its terms, it covered plaintiff's mill stock, consisting of sacks, grain, flour and feed stuff, contained in plaintiff's mill building. The fire occurred during the life of the policy, by which the property insured was destroyed. The cause was submitted to the court, sitting as a jury, upon the following agreed statement of facts:

" For the purpose of a trial of the above case, at the present term of said court, the following statement is agreed upon as covering the facts in the case:

The defendant executed and delivered to the plaintiff the policy of insurance, the premium for which was paid by plaintiff and which is in words and figures as follows:

Before the execution of said policy, and to procure the same from defendant, the plaintiff made and delivered to the defendant the written and printed application referred to in the policy, which application is in words and figures as follows:

That on the nineteenth day of June, 1884, the property alleged in the petition to have been destroyed by fire was so destroyed.

That on the seventh day of July, 1884, the plaintiff made and delivered to defendant formal proof of loss, as required by the terms of the policy.

The defendant admits its liability to pay for all the property so destroyed, and mentioned in the petition, excepting the five thousand six hundred and seventy grain sacks branded ‘ Cole Bros. Com. Co.’ That the value of the property so destroyed, excepting the five thousand six hundred and seventy sacks, was $724.30, and that on the ______ day of ______, 1884, defendant deposited with the clerk of this court, for use of plaintiff, said amount, with interest and costs accrued to that date.

The five thousand six hundred and seventy sacks were in the possession of the plaintiff, and in plaintiff's mill, at the time said policy was issued, and at the time of the fire, and were destroyed by the fire.

That said sacks were in possession of the plaintiff, who had received them, in the year 1883, from the Cole Bros. Commission Company, of St. Louis, who were then the owners of them, and who leased them to the plaintiff under an agreement by which plaintiff was to pay said Cole Bros. Commission Company two cents per month rent for each of said sacks, for such time as plaintiff should keep them, which agreement further provided that plaintiff should pay the Cole Bros. Commission Company for all sacks which should not be returned to it by plaintiff, at their market value.

Under the contract, plaintiff paid the rent on the sacks to Cole Bros., up to the time of the fire, but said sacks were never returned; since said sacks were so destroyed, the plaintiffs have settled with Cole Bros. Commission Company, and paid them for said sacks at eighteen cents each, which was their market value."

Written in the body of the policy was the following:

" Application and survey number five hundred and eight, now on file in the company's office, referred to, which is hereby made a part of this contract and warranty on the part of the assured."

The conditions of the policy were as follows:

" Terms and conditions upon which this policy is issued."

Condition No. 1 provided as follows:

" If an application, survey, plan or description of the property herein insured, is referred to in this policy, such application, survey, plan or description shall be considered a part of this contract and warranty, by the assured; * * * or if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, be not truly stated in the policy, * * * then, and in every such case, this policy shall be void."

If the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured, * * * it must be so represented to the company and so expressed in the written part of this policy; otherwise the policy shall be void."

In the application was the following question and answer: " Is the ground, mill, machinery and stock in the mill, all owned exclusively by the applicant for this insurance?" Answer: " Yes."

The whole controversy in this case is as to the liability of the defendant for the sacks contained in the mill and destroyed by the fire. On this issue the court declared the law as follows:

" The court declares that, upon the pleadings and evidence in this case, there can be no recovery on account of the destruction of the five thousand six hundred and seventy sacks branded ‘ Cole Bros. Com. Co.,’ mentioned in the petition."

The plaintiff has brought the case here by appeal.

BOYD & SEBREE, for the plaintiff in error.

I. The representation of plaintiff in applying for the policy, to the effect that the sacks in question were the property of the plaintiff, is of no importance, unless it affected the risk, and such statement did not affect the risk in this case. Shultz v. Merchants Ins. Co., 57 Mo. 337.

II. The interest of the assured is measured by the extent of his loss, in case of loss, and if, when the property is destroyed, he is the exclusive loser to the full extent of the value of the goods, then he is the exclusive owner, so far as the insurance contract is concerned.

III. Under the contract with Cole Bros., plaintiff was the only one who could lose, by destruction of the goods, and was with reference to any loss the exclusive owner. Shaw v. Æ tna Ins. Co., 49 Mo. 580; Gaylord v. Lamar, 40 Mo. 14.

GAGE, LADD & SMALL, for the defendant in error.

I. The plaintiff having made an application, which was referred to in the policy, the same by the terms of the policy became a part thereof and a warranty by the assured. The answer to the question in the application, " Is the ground, mill, machinery and stock in the mill all owned exclusively by the applicant for this insurance?" being, at the time, untrue, in point of fact, as to the 5,670 sacks, the warranty was broken, and as to those sacks the policy had no effect. Loehner v. Home Mutual Ins. Co., 17 Mo. 248; Mers v. Franklin Ins. Co., 68 Mo. 127; American Ins. Co. v. Barnett, 73 Mo. 364; Wood on Insurance [1 Ed.] sect. 137.

II. The contract having provided that, " if the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured, * * * it must be so represented to the company, and so expressed in the written part of the policy, otherwise the policy shall be void; " and also having provided that, " if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, be not truly stated in this policy," then and in that case the policy should be void; and the plaintiff not having been the entire, unconditional, and sole owner of the 5,670 sacks, but having been in fact the lessee thereof, and the same not having been truly stated in the policy and expressed in the written part thereof, as to these sacks the policy was null and void. Mers v. Franklin Ins. Co., 68 Mo. 127; American Ins. Co. v. Barnett, 73 Mo. 364; Reithmueller v. Ins. Co., 20 Mo.App. 246; Adema v. Lafayette Ins. Co., 36 La.Ann. 660; Farmers & Drovers Ins. Co. v. Curry, 13 Bush 312; Kibbe v. Hamilton Ins. Co., 11 Gray 163; Southwich v. Atlantic Ins. Co., 133 Mass. 457; Rohrback v. Germania Ins. Co., 62 N.Y. 47; Lasher v. St. Joseph Ins. Co., 86 N.Y. 423; Agricultural Ins. Co. v. Mon tague, 38 Mich. 548; Miller v. Amazon Ins. Co., 45 Mich. 463; Waller v. Northern Assurance Co., 64 Iowa 101; McCormick v. Ins. Co., 66 Cal. 361.

PHILIPS P. J.

There is no ground for controversy but that, under the application for, and the provisions of, the policy of insurance, the statement by plaintiff respecting the quality of his title to the sacks was made express warranty. Loehner et al. v. Home Mutual Ins. Co., 17 Mo. 247; American Ins. Co. v. Barnett, 73 Mo. 364; Wood on Insurance, sect. 137.

It is equally undeniable that if the interest of the assured in the...