Park v. Fidelity & Casualty Co.

• Decision Date: 08 December 1925
• Docket Number: No. 18871.,18871.
• Citation: 279 S.W. 246
• Court: Missouri Court of Appeals
• Parties: PARK v. FIDELITY & CASUALTY CO. OF NEW YORK.

279 S.W. 246

PARK v. FIDELITY & CASUALTY CO. OF NEW YORK.

No. 18871.

St. Louis Court of Appeals. Missouri.

December 8, 1925.

Rehearing Denied December 29, 1925.

Appeal from St. Louis Circuit Court; A. B. Frey, Judge.

"Not to be officially published."

Action by Della Unger Park against the Fidelity & Casualty Company of New York. Judgment for plaintiff, and defendant appeals. Reversed.

Taylor, Chasnoff & Willson, of St. Louis, for appellant.

Patrick A. Lavin and James J. O'Donohoe, both of St. Louis, for respondent.

BENNICK, C.

This is an action to recover on a burglary insurance policy carried by plaintiff in defendant company. The verdict of the jury was for plaintiff in the total sum of $2,640, of which amount $200 represented the damages assessed for vexatious refusal to pay and $350 an allowance for attorneys' fees. Complying with an order of court, plaintiff remitted the last two named items, and a judgment was entered in her favor in the sum of $2,090, from which defendant hag appealed.

The petition alleged that defendant had duly issued, executed, and delivered its policy of insurance, by the terms of which it agreed to indemnify plaintiff against loss by burglary, larceny, or theft of the property specified therein, that plaintiff sustained a loss by burglary and larceny, but that defendant disclaimed liability under said policy, and that such refusal to pay was vexations, willful, in bad faith and without reasonable cause or excuse.

The answer, after denying generally the allegations in the petition, alleged the making and breach by plaintiff of warranties (1) that no part of the premises mentioned in the policy was used by any physician, surgeon, oculist, or dentist for the reception or treatment of patients; (2) that she had no business address; and (3) that she had no business or occupation, but was a widow, whose income was from stocks, bonds, and real estate. The answer further alleged that at the time of the issuance of the policy, and at all times during the policy period, plaintiff was a midwife, actively engaged in the practice of her profession as such, and deriving a substantial portion of her income therefrom; that the premises occupied by her were used by her for the practice of her said profession and for the reception and treatment of her patients.

To this answer plaintiff filed a reply, in which, after a general denial, it was alleged that at the time application was made for the policy, when it was issued, and ever since, defendant knew the use that was made of the premises, plaintiff's business and occupation, and the sources from which she derived her income; that with such knowledge defendant issued and delivered the policy and collected and held the premium, whereby it had waived its right and was estopped to set up breach of warranties as a defense.

The evidence disclosed that at the time the policy was issued, and during its term, plaintiff resided in a residence owned by her at 6291 Bartmer avenue in University City, St. Louis county, Mo. Her first husband, Chas. F. Unger, had died in April, 1921, and some time subsequent to the institution of this action she had married one William Park.

From October 6, 1919, to October 6, 1920, plaintiff and her husband had carried a policy of burglary insurance in the AEtna Casualty & Surety Company. Upon the expiration of that insurance, a policy in the sum of $1,000 was issued by defendant. At the end of the year, the policy was renewed, and on December 12, 1921, the amount of insurance was increased to $2,000; the last-mentioned policy being the one sued on.

The evidence was that for 18 years plaintiff had procured practically all her insurance from one Edgar R. Smythe, who was associated with the brokerage firm of Weissenborn & Reynolds; that plaintiff would simply tell him to secure the insurance, and he in turn would give the order to Weissenborn & Reynolds; that plaintiff would determine the amount of insurance she wished, but would not select the company; that, when Smythe was out of the city, either Weissenborn or Reynolds would take care of her business; that Smythe received a commission out of the premium.

Plaintiff's first burglary insurance policy in the AEtna Company had been procured through Weissenborn & Reynolds, who had signed that policy as general agents, but at the time of the issuance of the policy sued on they had no burglary insurance connection, but with respect to such insurance were simply brokers. Smythe occupied the same status.

It appeared that, in procuring the policy sued on, Julius Weissenborn, manager of the casualty department for Weissenborn & Reynolds, made out an application, which was forwarded to defendant's agent, Hoffman & Sons Company. The information used in filling out the application was obtained from previous policies which had been issued to plaintiff through Weissenborn & Reynolds, one of them being the AEtna policy. When the application reached Hoffman & Sons, the risk was passed upon by A. G. Baare, and, being accepted, the policy was issued and signed by Hoffman. Baare passed upon the acceptability of the risk, basing his judgment upon the schedule of warranties which appeared in the application blank. The policy was then sent to the office of Weissenborn & Reynolds, where a red sticker bearing the name of that firm was pasted on it. Credit was extended to Weissenborn & Reynolds by Hoffman & Sons Company, and at the end of each month a settlement was made; Weissenborn & Reynolds retaining their commissions out of the premiums.

The policy provided that it was issued in consideration of the premium and of the statements set forth in the schedule, and which, by the acceptance of the policy, were made and warranted by plaintiff to be true. Among the statements in the schedule were the following:

"Statement 1: The name of the assured is. Mrs. Della Unger.

"Statement 2: The location of the building in which the assured resided is 6291 Bartmer avenue, University City, St. Louis county, Mo.

"Statement 3: The building is private residence.

"Statement 6: No part of the premises is * * * used by any physician, surgeon, oculist, or dentist for the reception or treatment of patients, except as follows: No exceptions.

"Statement 10: The business address of the assured is none.

"Statement 11: The business or occupation of the assured is widow (income from stocks, bonds, and real estate)."

The evidence disclosed that plaintiff had been a midwife since 1906, and was engaged in the practice of her profession as such at, 6291 Bartmer avenue at the time the policy sued on was written; that she received patients in her home, the reception room being on the first floor, and the consultation room, in which she kept her equipment, being upstairs; that there was a sign in front of her house reading "Della Unger, Midwife," and that a portion of her income was derived from her profession. The fact that she was a midwife was known to Smythe and Weissenborn & Reynolds, but was not known to Baare or Hoffman & Sons Company. Baare testified that he had never approved an application for burglary insurance made by one who was disclosed to be a midwife.

On the evening of December 10, 1922, plaintiff left her home in company with William Park, and upon her return was robbed by three men, who had broken open the rear window and had entered the house during her absence. The next day the sheriff of St. Louis county was notified, and a claim forwarded to defendant, by whom liability was subsequently denied, and the amount of the premiums with interest tendered into court.

At the close of plaintiff's case, and again at the close of the whole case, defendant unsuccessfully demurred to the evidence. Plaintiff went to the jury upon one instruction on the measure of damages, submitting also the issue of vexations delay.

Defendant assigns as error the action of the trial court in overruling the demurrer to the evidence offered at the close of the entire case. In support of its contention, it is argued that the statements contained in the schedule were...