Nute v. The Hartford Fire Ins. Company
| Decision Date | 07 November 1904 |
| Parties | MICHAEL NUTE et al., Respondents, v. THE HARTFORD FIRE INSURANCE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Macon Circuit Court.--Hon. Nat. M. Shelton, Judge.
AFFIRMED.
Judgment affirmed.
Ben Eli Guthrie and Barger & Hicks for appellant.
(1) The facts did render the policy void and released the defendant from further liability thereunder, but also forfeited the claim of John, Michael and Annie to any part of the $ 1,400 on account of the loss of the barn, has frequently been held and is the well-settled law. Claflin v. Ins. Co. (U. S S. C.), 13 Ins. Law Jour. 177, 185; 4 Joyce on Insurance, secs. 3339 and 3342; Ins. Co. v. Meides (U S.), 14 Wall. 375; Gerhouser v. Ins. Co., 6 Nev. 15; Ins. Co. v. Newday, 5 Coldw. (Tenn.), 543; Ins. Co. v. Starr, 71 Tex. 733, 12 S.W. 45; Ins Co. v. Vaughn, 88 Va. 832, 14 S.E. 508; Sleeper v. Ins. Co., 5 Ins. Law Jour. 538, 540, 545; Sibley v. Ins. Co. (U. S. S. C.), 8 Ins. Law Jour. 461, 462; Dohmen Co. v. Ins. Co. (Wis.), 27 Ins. Law Jour. 357-367; West v. Assur. Co. (U. S. S. C.), 25 Ins. Law Jour. 689. (2) The undisputed testimony also showed that after the policy was issued and without notice to or the knowledge or consent of the defendant, a change took place in the title of the property described in the policy sued on by reason of the deed made and delivered by Annie E. Nute, June 4, 1900, conveying her undivided one-fourth interest to John W. and Michael Nute. That such change in the title rendered the policy void is held in each of the following authorities: Drehner v. Ins. Co., 18 Mo. 128; Carr v. Ins. Co., 4 Mo.App. 424; Oldham v. Ins. Co. (Iowa), 57 N.W. 861; Dix v. Ins. Co., 22 Ill. 272; Hathaway v. Ins. Co., 20 N.W. 164; Keeler v. Ins. Co., 16 Wis. 523; Ins. Co. v. Ross, 23 Ind. 180; Wood v. Ins. Co., 31 Vt. 552; Buckley v. Garrett, 47 Pa. 204; Ins. Co. v. Becker, 10 Mich. 279; Overton v. Ins. Co., 79 Mo.App. 1; Rayner v. Ins. Co., 70 Mo.App. 47; Ins. Co. v. Gibbons, 43 Kan. 15; Assur. Co. v. Bldg. Assn. (U. S. S. C.), 22 S.Ct. 133, 31 Ins. Law Jour. 97; Quinlan v. Ins. Co., 133 N.Y. 356, 21 Ins. Law Jour. 650; Walsh v. Ins. Co., 73 N.Y. 5; Hankins v. Ins. Co., 70 Wis. 1, 35 N.W. 34; Gould v. Ins. Co. (Mich.), 21 Ins. Law Jour. 328; Enos v. Ins. Co. (Cal.), 15 Ins. Law Jour. 138; Kyte v. Assur. Co., 144 Mass. 43, 16 Ins. Law Jour. 330; Ruthven v. Ins. Co., 41 N.W. 373; Kirkman v. Ins. Co. (Iowa), 57 N.W. 952; Knudson v. Ins. Co., 71 Wis. 198; Moore v. Ins. Co., 36 N.E. 191. On June 11, 1900, at the instance of the plaintiffs, the indorsement was put on the policy. (3) After the indorsement was put on the policy it was again delivered to the plaintiffs, and was accepted and retained by them. By the acceptance and retention thereof without objection they acquiesced in its correctness, as was held by the court of appeals in Overton v. Ins. Co., 79 Mo.App. 1. (4) Besides, there is not a syllable in the testimony that John or Michael, on June 11, 1900, said one word to Mr. Hale in regard to the ownership of the personalty in the house. Mers v. Ins. Co., 68 Mo. 127; Ins. Co. v. Wagner (Tex.), 26 Ins. Law Jour. 261. (5) The court erred in admitting the testimony of each of the plaintiffs as to the value of the personalty in the house. (6) The court erred in giving to the jury its first instruction on behalf of the plaintiffs. (7) The verdict is directly opposed to instructions numbered 1, 2 and 3, given on behalf of defendant. (8) The court erred in refusing to give instruction numbered four, as asked by defendant, and in modifying and giving said instruction, as modified. (9) The verdict is contrary to the fifth instruction given by the court in behalf of the defendant. (10) Because the undisputed evidence showed that under the law as applied to such evidence, the plaintiffs were not entitled to recover, the court should have given the peremptory instruction requested by defendant at the close of the evidence and sustained the demurrer to the evidence.
Dysart & Mitchell for respondents.
(1) There was no written application in this case. The plaintiffs were solicited by C. F. Hale, the agent of the defendant company to insure with said company. Said Hale was what defendant calls their recording agent at Bevier, Missouri, and had power to countersign, issue and deliver policies, receive premiums and stood in the place of the company in making this contract of insurance. The evidence does not leave room for a doubt that plaintiffs frankly, fully and truthfully stated the condition of the title to the premises to the company and afterward diligently kept the company informed as to the state of the title. Parsons v. Ins. Co., 132 Mo. 590; Laundry Co. v. Ins. Co., 151 Mo. 90; O'Brien v. Ins. Co., 95 Mo. App 301; Ross-Langford v. Ins. Co., 97 Mo.App. 79; Wolf v. Ins. Co., 86 Mo. 580; Ownsby v. Ins. Co., 98 Mo.App. 371; Montgomery v. Ins. Co., 80 Mo.App. 500; Rissler v. Ins. Co., 150 Mo. 366; Thompson v. Ins. Co., 169 Mo. 25; DeSoto v. Ins. Co., 74 S.W. 1; Woodsmall v. Ins. Co., 99 Mo.App. 472, 73 S.W. 1133; Brennen v. Ins. Co., 99 Mo.App. 718. (2) When the recording agent, Hale, and the company were informed of the quitclaim deed from Annie E. Nute to plaintiffs, and of the suit against Wm. Nute for specific performance and to quiet the title, unless it was the intention of the company to consent thereto and continue the insurance, the company should have cancelled the policy and returned the unearned premium. Millis v. Ins. Co., 95 Mo.App. 211; Thompson v. Ins. Co., 169 Mo. 25, 26. (3) There was no evidence to support the defense set up in the answer and none to justify the instructions given for defendant. The verdict is the only one that could have been rendered on the uncontradicted evidence and the judgment ought to be affirmed. Earney v. Modern Woodmen, 79 Mo.App. 385. (4) The objection of defendant to instruction numbered 1 and 2 given for plaintiffs is not well taken. This court passed upon and approved an instruction in Ross-Langford v. Insurance Company, 97 Mo.App. 79, l. c. 82, almost exactly like the instructions here complained of. Even if the instructions given for plaintiffs in this case were wrong, which plaintiffs deny, still the verdict of the jury and judgment of the court were unquestionably on the uncontradicted evidence for the right party and ought to be affirmed. R. S. 1899, secs. 659 and 865; Fitzgerald v. Barker, 96 Mo. 666; Fox v. Winders, 127 Mo. 514; Baustian v. Young, 152 Mo. 325; Sherwood v. Railway, 132 Mo. 339; Noble v. Blount, 77 Mo. 239; Quinlan v. Kansas City, ___ Mo. ___.
This is an action which was brought on a fire insurance policy issued by the defendant. The salient facts which are disclosed by the evidence may be marshalled in about this way: The plaintiffs in the year 1884 purchased a certain tract of land near Bevier in Macon county, this State. They paid the entire purchase price to their vendor and under a contract with their mother, Louisa Nute, that she would convey said land to them when requested so to do, they caused their vendor to execute a deed conveying the legal title to her; that she and her daughter, Anna Nute--plaintiffs' sister--resided with plaintiffs on it until the mother's death in 1895, and that the plaintiffs and their said sister after such death of their mother continued to reside on it for many years; that on June 5, 1899, the defendant issued a policy of fire insurance whereby it insured the heirs of Louisa Nute, deceased, for three years against all damage by fire on a certain dwelling house and the furniture therein, and on a private barn and contents, all located on the tract of land already referred to; that said Louisa Nute, mother of plaintiffs, left as children surviving her besides the plaintiffs and said Anna Nute, one William Nute, another son; that C. F. Hale, a policy soliciting and writing agent of defendant at Bevier solicted the said insurance; that at the time the policy was issued the plaintiffs told him that the land upon which the buildings stood which were the subject of the proposed insurance had been purchased with money which they had earned in digging coal and that no part of the purchase price paid for it had been furnished by anyone else and as the business of mining was a hazardous one they chose to place the title in the name of their mother, Louisa Nute, with the express understanding that she would later on by deed or will convey it to them; that not only did said real estate belong to them, but all of said personal property as well--it, too, having been purchased by them with their own money; that plaintiffs informed the said agent that their said brother, William, and their sister, Anna, had no interest in any part of said property; that the mother of plaintiffs had died without conveying said land by will or deed to them; that thereupon the defendant's agent informed the plaintiffs, who were illiterate (one of them being unable to write his name), and ignorant as to insurance matters, that it was necessary to write the insurance solicited in the name of the heirs of Louisa Nute, deceased; that the defendant's agent was further told by plaintiffs that their said brother, William Nute, and sister, Anna Nute, had promised by deed to quitclaim their title therein to them. It further appears from the evidence that defendant's agent was personally well acquainted with the said Louisa Nute in her lifetime as well as with her four children already named and the relation of all of them to the property; that afterwards, during the life period of the policy, the barn covered by it was struck by lightning and thereby set on fire, which together with its contents was thereby consumed; that the...
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