Riley v. American Central Ins. Co.

• Decision Date: 05 February 1906
• Parties: RILEY v. AMERICAN CENTRAL INS. CO.
• Court: Missouri Court of Appeals

92 S.W. 1147

117 Mo. App. 229

RILEY v. AMERICAN CENTRAL INS. CO.

Kansas City Court of Appeals. Missouri.

February 5, 1906.

Rehearing Denied March 3, 1906.

1. INSURANCE — WAIVER OF PROVISION IN POLICY — AUTHORITY OF AGENT.

An agent who solicited, issued, and countersigned a policy of fire insurance, and collected the premiums, had authority to waive a provision requiring the books of the insured to be kept in a fireproof safe.

2. SAME — EVIDENCE.

Evidence that an insurance agent, who had authority to waive a provision in a fire policy requiring the insured to keep his books in a fireproof safe, knew at the time of issuing the policy that the insured had no such safe, and on the day before the fire, while he saw that insured still failed to comply with the provisions of the policy, instead of canceling the policy, solicited additional insurance, authorized a finding that the provision of the policy was waived.

3. SAME.

In an action on a fire policy, evidence of the insurance agent's knowledge, prior to the execution of the written contract, that the insured would not comply with an ironsafe clause in the policy, is admissible to connect with evidence that, after the execution of the contract, he had knowledge that the assured was not complying with the provision, for the purpose of showing a waiver.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by J. P. Riley against the American Central Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Fyke & Snider, for appellant. Thomas & Hackney and Howard Gray, for respondent.

ELLISON, J.

This is an action on a fire insurance policy in which plaintiff prevailed in the trial court. It appears from the terms of the policy that plaintiff was a retail merchant in a small town in Jasper county, and that it was stipulated that: "The assured shall keep such books and last inventory, and also last preceding inventory, securely locked in a fire-proof safe at night, and at all times when the building mentioned in this policy or the portion thereof containing the stock described therein, is not actually open for business; or, failing in this, the assured will keep such books and inventories at night, and at all such times in some place not exposed to a fire which would ignite or destroy the aforesaid building." The evidence showed that a loss occurred by fire about six months after the policy was issued. It also showed that plaintiff did not comply with those provisions of the policy.

Plaintiff, in support of the judgment, relies upon a waiver of the provisions. There was evidence tending to show that defendant's agent had been insuring plaintiff for about 10 years, a great portion of the time in this defendant company. That during all that time he told the agent, and the agent knew, that he did not have a safe, and that he would not get one, and that he would not keep his books in a safe, nor would he take them home at night, but would leave them at the store. That he showed the agent the kind of books he kept, and where he kept them. That he told him that at the issuance of the present policy, as well as before. The evidence further tended to show that on the day before the fire occurred this agent was in plaintiff's store and solicited him to take out additional insurance as he (the agent) did not think what was then on it was enough. And that in this conversation they talked about "the books and matters," and the agent said to him, when thus soliciting more insurance, that "You are still going ahead, keeping your books like you have been?" And he told him that he was. The instructions on the subject of waiver were to the effect that, if the jury believed that the agent had the knowledge thus testified to, and failed to cancel the policy, or to make any objection thereto, it was a waiver. The first question, then, is on the power of the agent to waive the provisions in controversy. In view of the rulings of the courts in this state in the last few years, there can be no doubt of the authority of the agent. He solicited, issued, and countersigned the policy, and collected premiums, and was therefore the alter ego of the company. James v. Ins. Co., 148 Mo. 1, 49 S. W. 978.

The remaining question is, did he waive such provisions? We have already stated the evidence in plaintiff's behalf bearing on that question. From such evidence, it appears that the agent was informed by plaintiff, when he issued the policy, that he would not do what is therein provided he should do; and that after he issued the policy he knew that plaintiff, in keeping with what he had told him, was not complying with those provisions. That, on the day before the fire, the agent saw that he was not complying with those provisions, and, instead of objecting or taking steps for forfeiture, he solicited additional insurance. Undoubtedly, this was sufficient upon which to base a finding of waiver. In Springfield Laundry Co. v. Insurance Co., 151 Mo. 90, 98, 52 S. W. 238, 74 Am. St. Rep. 521, it was provided in the policy that, if the property should be advertised for sale under a mortgage thereon, the policy should become void. The property was advertised, and the local agent knew that it was, but he took no steps towards canceling the policy. It was held that such nonaction, with that knowledge, was a waiver of the forfeiture. In Thompson v. Insurance Co., 169 Mo. 12, 25, ...