Reithmueller v. Fire Ass'n of Philadelphia

• Decision Date: 05 January 1886
• Citation: 20 Mo.App. 246
• Parties: LOUISE REITHMUELLER AND ALOIS REITHMUELLER, Respondents, v. THE FIRE ASSOCIATION OF PHILADELPHIA, Appellant.
• Court: Missouri Court of Appeals

20 Mo.App. 246

LOUISE REITHMUELLER AND ALOIS REITHMUELLER, Respondents,

v.THE FIRE ASSOCIATION OF PHILADELPHIA, Appellant.

Kansas City Court of Appeals, Missouri.

Jan. 5, 1886.

APPEAL from Buchanan Circuit Court, HON. JOSEPH P. GRUBB, Judge.

Reversed and remanded.

Statement of case by the court.

This is an action by plaintiffs, who are husband and wife, upon a policy of insurance issued by defendant to the female plaintiff, insuring her against loss or damage by fire to her stock of wholesale and retail millinery goods. The petition is in two counts, there having been a loss by each of two separate and distinct fires.

The policy contained a clause to this effect: “This policy shall become void unless consent in writing is endorsed by the association hereon, in each of the following instances, viz: 1. If the assured is not the sole and unconditional owner of the property * * *.”

From the record it does not appear that the female plaintiff made any statement whatever as to her interest in the property. There was no endorsement upon the policy touching the ownership of the property.

Among other defences set up in the answer a breach of the above condition was alleged, in this, “that said plaintiff (female plaintiff) was not, when she obtained said alleged policy, is not now, and never has been the sole or unconditional owner of said property, but said property at said time and ever since, belonged to said Alois Reithmueller, that defendant had no knowledge or information at any time until after the alleged fires, that said Louise Reithmueller was not the sole and unconditional owner of said property, and never at any time endorsed in writing or otherwise, its consent that she did not so own it, on said policy; and said policy is, and was when obtained by said plaintiff, null and void.”

At the trial the defendant offered to prove that the plaintiff, Alois Reithmueller, the husband of the female plaintiff, owned the goods at the time the policy was issued, and at the time of the fires; that the business was his; and that the female plaintiff did not own the goods at any time. The court refused to permit defendant to prove this.

The evidence did not tend to show at what time the defendant first obtained the information that the husband, and not the wife, was the owner of the insured property. The averment of the answer was that the information was first obtained after the second fire. This statement presents the only question which we deem it necessary for us to pass upon.

JAMES W. BOYD, for the appellant.

I. Defendant offered to prove by the assured that she did not own the goods mentioned in the policy sued on, either at the time of obtaining the policy, or at the time of either of the fires named in the petition. The court excluded the evidence, which was excepted to. This was error. Wood on Fire Ins., sect. 250, p. 496.

II. The court erred in permitting plaintiffs to prove declarations of one Lewis, made after the fire, in reference to the adjustment of the loss, as he was not authorized to adjust any loss, but was agent only, for the purpose of issuing policies and renewals and receiving money for the same. Wood on Fire Ins., sect. 405; Lohnes v. Ins. Co. of N. A., 121 Mass. 439; Birsch v. Ins. Co., 63 N. Y. 531.

III. The instructions asked by defendant and refused, ought to have been given, because plaintiffs failed to make out a case, (1) as to other insurance; (2) as to proof of loss; (3) as to ownership. There was no waiver as to any of them. Obermeyer v. Ins. Co., 43 Mo. 573; Gale v. Ins. Co., 41 N. H. 170; Thomas v. Ins. Co., 119 Mass. 121; Wood on Fire Ins., sects. 348, 436, 87, 405.

IV. The instructions given on the part of plaintiff were erroneous. There was no waiver as to the fact of other insurance, or of proof of loss, or of ownership, as the first and last were not even known to appellant at the time of issuing the policy.

V. The suppression of the fact as to ownership when the policy was obtained was fraudulent; and as she did not own the goods destroyed by the fires, she was not damaged. Having obtained the policy by fraud, it was, when obtained, a void instrument. Obermeyer v. Ins. Co., 43 Mo. 573; Gale v. Ins. Co., 41 N. H. 170. So as to the clause concerning other insurance, for by the terms of the policy it never became a contract. Thomas v. Ins. Co., 119 Mass. 121; Philbrook v. Ins. Co., 37 Maine 187.

VI. The forfeiture has not been waived. The policy could only be revived by a new contract, or such conduct as by misleading the assured to his prejudice operates as an estoppel. Mere knowledge of the violation, without any other action of the insurance company, is of no account. Ins. Co. v. Fay, 22 Mich. 467; Ins. Co. v. Riker, 10 Mich. 279.

EUGENE C. ZIMMERMAN, for the respondent.

I. Plaintiffs in effect objected to proof by defendant that plaintiff held the property for the purpose of defrauding the creditors of her husband. She did not represent herself to be the sole and unconditionl owner of the property; it was sufficient if she had an insurable interest in it. May on Ins. (2 Ed.) 371, 94; Manson v. Ins. Co., 18 Mo. 162; Lerow v. Williams, 9 Allen (Mass.) 382.

II. Under the pleadings, defendant did not offer to amend as to ownership. It was a matter of defence, and cannot be availed of unless pleaded, and it is necessary, in such pleadings, not only to negative the allegations of the petition, but state the particulars in which the untruthfulness, or breach, consists. May on Ins. (2 Ed.) 895; Hyeronemes v. Allison, 52 Mo. 102.

III. Defendant was estopped from denying plaintiff's interest in said property, said policy having recited the interest of assured, and the answer failing to state failure or change of title. May on Ins. (2 Ed.) 895, 213, 217; Combs v. Hannibal Ins. Co., 43 Mo. 148.

IV. Proofs of loss were made by plaintiff as owner. Defendant received such proofs and refused to pay loss upon other grounds. May on Ins. (2 Ed.) 700-772; Russell v. Ins. Co., 55 Mo. 585; Shultz v. Ins. Co., 57 Mo. 331; McComas v. Ins. Co., 56 Mo. 573.

V. It is not necessary to sustain a waiver that the consent of the company should be in writing. Knowledge of violation, failure to cancel, and refusal to...