Riley v. American Central Ins. Company
| Decision Date | 05 February 1906 |
| Citation | 92 S.W. 1147,117 Mo.App. 229 |
| Parties | J. P. RILEY, Respondent, v. AMERICAN CENTRAL INSURANCE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.
AFFIRMED.
Judgment affirmed.
Fyke & Snyder for appellant.
(1) The court erred in permitting plaintiff to testify to conversations between plaintiff and defendant's agent prior to the time the policy was issued. Gillum v. Ins Co., 106 Mo.App. 673; Ins. Co. v. Neiberger, 74 Mo. 167; Helm v. Railroad, 98 Mo.App. 419; Catterlin v. Lusk, 98 Mo.App. 182; Ins. Co. v Buchalter, 83 Mo.App. 504; Ijams v. Life Assn., 185 Mo. 466; Sowers v. Ins. Co. (Iowa), 85 N.W. 763. (2) And for the same reason plaintiff's second instruction is erroneous. Ijams v. Life Ass'n, 185 Mo. 466. (3) The court erred in giving plaintiff's third instruction because there is no evidence to warrant it. It will be noticed that plaintiff did not claim that he ever talked with Allen more than once about where he kept his books, and that was before the policy was issued. Gillum v. Ins. Co., 106 Mo.App. 673; Ins. Co. v. Mize, 34 S.W. 670 (Tex.); Ins. Co. v. Brownell, 62 Ark 43; Morris v. Ins. Co. (Ga.), 32 S.E. 599; Thompson v. Ins. Co., 169 Mo. 12, 23; Guar. Co. v. Coal Co., 103 Mo.App. 547. (4) The court erred in overruling defendant's demurrer to the evidence, when plaintiff closed, and again at the close of all evidence. 13 A. and E. Ency. of Law (2 Ed.), p. 355; Ins. Co. v. Wilkinson (Ark.), 13 S.W. 1103; Shoe Co. v. Ins. Co., 28 S.W. 1027; Ins. Co. v. Allen, 24 So. R. 399 (Ala.); Id., 30 Southern 537; Ins. Co. v. Brownell, 62 Ark. 43, 34 S.W. R., 83; Ins. Co. v. Parker, 61 Ark. 207; Assurance Co. v. Altherium, 58 Ark. 25 S.W. 1067; Ins. Co. v. Stubbs, 98 Ga. 754, 27 S.E. 180; Ins. Co. v. Sprague, 8 Ind.App. 275; Goldman v. Ins. Co. 48 Louisiana 220; Jones v. Ins. Co., 38 F. 19; Ins. Co. v. Forehand, 169 Ill. 626, 48 N.E. 830; Lozaro v. Ins. Co., 78 F. 278; Sowers v. Ins. Co., 85 N.W. 763 (Iowa); Roberts et al. v. Ins. Co., 48 S.W. 559 (Texas); Davis v. Ins. Co., 78 N.W. 596 (Wis.); Ins. Co. v. Crist, 56 S.E. 658; Redunson v. Ins. Co., 34 So. R. 18 (Ala.); D. G. Co. v. Ins. Co., 100 Mo.App. 504; Fire Assn. v. Calhoun (Tex.), 67 S.W. 153; Hester v. Ins. Co., 41 S.E. 522 (Ga.); Crigler v. Ins. Co., 49 Mo.App. 11; Gibson v. Ins. Co., 82 Mo.App. 515; Harveston v. Ins. Co., 105 Mo.App. 575; Ins. Co. v. Allen (Kan.), 77 P. 529.
Thomas & Hackney and Howard Gray for respondent.
(1) The knowledge of the defendant that plaintiff had no safe and had not for a number of years kept a set of books, as required by former policies, and with the understanding that he would not keep such books during the life of the policy in question amounted to a waiver of that clause in the policy. Hanna & Co. v. Ins. Co., 109 Mo.App. 152; Busch v. Ins. Co., 85 Mo.App. 155; Ross-Langford v. Ins. Co., 97 Mo.App. 79; Carr v. Ins. Co. 100 Mo.App. 602; James v. Ins. Co. 148 Mo. 1; Laundry Co. v. Ins. Co., 151 Mo. 90; Mitchell v. Ins. Co., 18 So. 86, 48 A. R. 535; Trust Co. v. Ins. Co., 79 Mo.App. 362. (2) We submit that even under the decision cited by the appellant, the verdict in this case is for the right party and should not be disturbed.
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, if 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 ten 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.]
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 these provisions. That, on the day before the fire, the agent saw that he was not complying with those provisions and instead of objection 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. Ins. Co., 151 Mo. 90, 98, 52 S.W. 238, 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. Ins. Co., 169 Mo. 12, 25, 68 S.W. 889, it was held that where the agent of the company knew of additional insurance not taken out in the manner provided in the policy and did not object, it was a waiver of the forfeiture; the court remarking that if it was desired to rely upon the forfeiture, action should have been taken. So in Pelkington v. Ins. Co., 55 Mo. 172, it was held that if the agent knew of additional insurance and did not object, it was a waiver of the forfeiture on that account. And that it was the agent's duty to express his dissent when he learned of cause for a forfeiture, if he intended to enforce it. And so we held in the recent case of Polk v. Assurance Co., 90 S.W. 397, 114 Mo.App. 514.
But it is said that under the case of Gillum v. Fire Ass'n, 106 Mo.App. 673, 80 S.W. 283, the judgment in this case cannot be sustained. That, under the law as there stated, all prior and contemporaneous understandings between plaintiff and the defendant's agent became merged in the policy. On the other hand, we are cited to the cases of Bush v. Ins. Co., 85 Mo.App. 155, and Hanna v Ins. Co., 109 Mo.App. 152, 82 S.W. 1115, in support of the judgment. These, defendant contends, are not in harmony with the Gillum case. In the Gillum case, the policy, like the one in controversy, contained the iron-safe clause. The judgment was reversed and the cause remanded on account of an instruction given for the plaintiff which, in terms, directed the jury to find for plaintiff if before the policy was issued the agent agreed with plaintiff that the iron-safe clause would be omitted from the policy. That, as stated by the presiding judge writing the opinion in that case, was a clear violation of one of the fundamental rules of law that all prior or contemporaneous agreements are conclusively presumed to be merged or included in the written contract finally executed. That instruction put the case to the jury, not upon a waiver by conduct after the policy was issued, but upon what was agreed to before the contract was finally embodied in the written policy. That, of course, could not be allowed without violating "one of the plainest and most beneficial rules of law." The criticism made of the instruction in the Gillum case is upheld in Ijams v. Assurance Society, 185 Mo. 466, 499, 84 S.W. 51. But neither the case of Bush v. Ins. Co., supra, nor Hanna v. Ins. Co., supra, are...
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