Polk v. Western Assur. Co.

• Decision Date: 06 November 1905
• Citation: 114 Mo. App. 514,90 S.W. 397
• Parties: POLK v. WESTERN ASSUR. CO.
• Court: Missouri Court of Appeals

90 S.W. 397

114 Mo. App. 514

POLK v. WESTERN ASSUR. CO.

Kansas City Court of Appeals. Missouri.

November 6, 1905.

1. INSURANCE—ACTION ON POLICY—EVIDENCE —SUFFICIENCY.

In an action on a fire policy, evidence held to show that the insurer's agent knew that the insured was procuring additional insurance on the insured property.

2. SAME—FIRE POLICY—ADDITIONAL INSURANCE—EFFECT.

Where a fire policy does not stipulate against additional insurance, the same is without effect upon the validity of the contract.

3. SAME—STIPULATION AGAINST ADDITIONAL INSURANCE—VALIDITY.

An agreement between insured and insurer in a fire policy that additional insurance without the consent of the insurer shall avoid the policy is valid.

4. CONTRACTS—MODIFICATION BY PARTIES— WRITTEN CONTRACT.

A written contract may be modified by the parties thereto in any manner they choose notwithstanding agreements prohibiting its alteration, except in a particular manner.

5. SAME—WAIVER OF CONDITION.

Conditions in a contract imposing a forfeiture as a penalty for breach may not only be waived by contract, but by the declaration or conduct of the party for whose benefit they are made.

6. INSURANCE — ADDITIONAL INSURANCE—ESTOPPEL—KNOWLEDGE OF AGENT.

Where a fire policy provided that it should be void in case of additional insurance without the consent of the original insurer indorsed on the policy, and the agent of the insurer had possession of the policy, and the insured called

on him and asked that the policy be delivered to him, that it might be used in writing another policy on the premises, and he received the policy, and the insurer made no objection, the insurer was estopped to rely on such stipulation.

7. SAME—INSTRUCTIONS.

In an action on a fire policy containing a stipulation that it should be void in case of other insurance without the consent of the original insurer, it appeared that defendant's agent had possession of the policy, and that plaintiff called on him to obtain possession of the policy to be used in procuring other insurance, and that insured obtained the policy; the agent being informed why he desired it. The court instructed that if plaintiff notified the agent of his intention to take out additional insurance on the property in question, and "at that time or afterwards" told him that he was about to do so, and that no objection was made, and no steps taken to cancel the policy, defendant would be deemed to have consented to the additional insurance. Held, that the instruction was not erroneous on the theory that it permitted the jury to find a waiver if they found that, before the issuance of the policy in question, plaintiff declared his intention of procuring other insurance.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by Merritt Polk against the Western Assurance Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Reed, Yates, Mastin & Howell, for appellant. Jno. J. Wolfe, for respondent.

JOHNSON, J.

Action upon a policy of fire insurance. Under the pleadings a single issue is presented; i. e., waiver by defendant of a condition contained in the policy prohibiting additional insurance, except by consent of defendant indorsed upon the policy. Plaintiff had judgment, and defendant appealed.

It is admitted that after the delivery of the policy plaintiff obtained additional insurance upon the same property from another company, and that the consent of the defendant was not written on the policy. Plaintiff introduced evidence to establish an oral waiver by the agent of the defendant. No point is made that the agent was without authority to bind his principal, but the sufficiency of the evidence offered is assailed, upon the ground that no notice that a new policy had been issued was given defendant, and nothing more is shown than the disclosure by plaintiff to defendant's agent of an intention to procure additional insurance, from which it is argued that such expression of intention to violate the contract at some time in the future, imposed no duty upon the agent to withhold his consent, and that the agent was not required to act, except upon notice of an actual breach. We cannot adopt the construction of the pertinent evidence that appears in the premise thus assumed. Defendant's agent was also the secretary of a building and loan association, and in that capacity held the policy in suit as security for a loan plaintiff had from the association. Plaintiff testified as follows: "Q. You may state then, after this policy had been written up, if you had any conversation with the agent of this company, Mr. Webster. A. Yes, sir; I went up there once or twice to get it—the policy—and he asked me what I did want with it, and I told him the other company wanted to see it so I could take something out on it. That is what I told him. And he said, `Let me have all of them.' And I said, `No, I have arranged with the other companies to take some of it.' * * * Q. What did you say? What did you tell him? A. I told him that some company wanted to see the policy. He gave me the policy, and...