Rissler v. American Cent. Ins. Co.

• Court: Missouri Supreme Court
• Writing for the Court: Gantt
• Citation: Rissler v. American Cent. Ins. Co., 51 S.W. 755, 150 Mo. 366 (Mo. 1899)
• Decision Date: 06 June 1899
• Parties: RISSLER v. AMERICAN CENT. INS. CO. OF ST. LOUIS.

51 S.W. 755

150 Mo. 366

RISSLER v. AMERICAN CENT. INS. CO. OF ST. LOUIS.

Supreme Court of Missouri, Division No. 2.

June 6, 1899.

ACTION ON POLICY COVERING TWO CLASSES OF PROPERTY — COMPELLING ELECTION — EVIDENCE — INACCURATE REPRESENTATIONS OF APPLICATION INDUCED BY AGENT.

1. In an action on a policy which insures two classes of property in designated amounts, a petition which alleges loss of both classes by one fire, and seeks to recover for both, is not open to the objection of joinder of two causes of action in one count, and he cannot be compelled to elect on which he will rely.

2. In an action on a policy which provided that insured should take an inventory annually, and keep books showing his daily transactions, testimony as to the value of the property destroyed is competent, though defendant had a right to demand the production of the books.

3. Insured, in answer to the question in the application blank as to when his last inventory was taken, stated to the agent, who was writing the answers, that he did not remember whether it was in 1894 or 1895, but that he could ascertain by looking at his books; whereupon the agent said it was immaterial, and wrote in "1895." The last inventory was taken in 1894. The insured signed the application, which stipulated that the answers therein should be considered as warranties, and the policy was issued pursuant thereto. The agent had authority to solicit insurance and issue policies for the company. Held, that the company was estopped to repudiate its liability on the ground that his statement as to when the last inventory was taken was false.

4. An insurance company is estopped to repudiate its liability on a policy when an applicant has been misled into making a false statement in his application therefor, though it is stipulated that the representations shall be considered as warranties, by the erroneous explanation of its agent as to the scope of a question, when the insured has truthfully stated the facts to the agent.

Appeal from circuit court, Cooper county; D. W. Shackleford, Judge.

Action by George C. Rissler against the American Central Insurance Company of St. Louis. From a judgment in favor of plaintiff, defendant appealed. Affirmed.

Fyke, Yates & Fyke, for appellant. W. F. Johnson and W. M. Williams, for respondent.

GANTT, P. J.

This is an action on a policy of insurance issued by defendant to plaintiff. The policy contains this provision: "In consideration of the stipulations herein named, and of $72.85 premium, the American Central Insurance Company of St. Louis does insure George C. Rissler for the term of one year from the twenty-first day of December, 1895, at noon, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding $4,700, to the following described property, while located and contained as described herein, and not elsewhere, to wit, $200 on store and office furniture and fixtures, including show cases and iron safe; $4,500 on stock of general merchandise." The petition is one count. Defendant filed a motion to compel plaintiff to elect upon which cause of action stated in the petition he would rely, which motion was overruled, and defendant excepted. The risk was solicited by E. H. Harris, a banker at Pilot Grove, and agent of defendant at that place. The execution and delivery of the policy, the ownership of the property by plaintiff, and its destruction by fire during the term covered by the policy are not denied. In the written application prepared by Harris, the agent, is the following stipulation: "And the said applicant hereby covenants and agrees to and with said company that the foregoing is a just, full, and true exposition of all the facts and circumstances in regard to the condition, situation, value, and risk of the property to be insured, and said answers are to be considered the basis upon which this insurance is effected, and the same is understood to be incorporated in, and as forming a part and parcel of, the policy to be issued hereon, and a special warranty by and upon the part of the applicant." Plaintiff's name was signed immediately under the foregoing. In the application the following questions and answers appear: "How often do you take an inventory of stock? A. Yearly. Do you carefully preserve the inventory? A. Yes. What was the date of the last? A. January, 1895. What was the amount of the last inventory? A. $6,200. Do you keep a cash book and merchandise account? A. Yes. Have you ever suffered loss of property by fire? A. No." It is admitted that plaintiff signed the application, after the answers were written as above, with full knowledge that they were so written. The defendant, in its answer, sought to avoid liability on the policy solely on the ground that the above answers were untrue; that plaintiff did not make an inventory yearly; did not take an inventory January, 1895, but his last inventory was January, 1894, and did not amount to $6,200, but to $5,500 only; and plaintiff previous to the time of the application had suffered loss by fire. The reply was set up, and the evidence introduced upon the trial established these facts: E. H. Harris, who issued the policy, was the agent of the defendant company. He had authority from it to solicit insurance, receive premiums, and issue policies, which were left with him in blank. He could make it a completed contract of insurance. He visited plaintiff at his place of business, and offered to insure his stock of goods, as well as the furniture and fixtures contained in his storehouse. Defendant's said agent had with him a blank application, which he filled up in plaintiff's presence. When the questions in regard to the last inventory were asked, plaintiff told the agent that it was taken in 1895 or 1894, and that he did not remember which; that he had said inventory in his safe; and started to get it, and give the exact date. The agent wrote "1895," and the amount, and told plaintiff that it was not material to examine the inventory for the exact date; that the train was coming upon which the agent desired to leave, and asked plaintiff to sign the application, which he did. The agent said in his testimony that Rissler told him that he would look at the inventory, and get its date, but that he (the agent) replied that it did not amount to anything anyhow; that the agent knew he had taken the inventory in 1894, because he had seen it; and that he had a full stock of goods. Plaintiff was prevented by the agent himself from giving him the exact date, and signed the application after having told the representative of the company that he did not know whether the last one was taken in 1895 or 1894, and upon the representation, by the said agent, that it was not material for him to be particular about the exact date. In answer to the question whether he had ever suffered loss by fire, he called the attention of the agent to the fact that Huyett & Rissler, about five years before, had suffered a loss in a company represented by said agent. Mr. Harris replied that he knew all about that, but the question referred to fires where the plaintiff was alone concerned, and that it did not mean partnership loss. The agent had full information upon this subject, and it was expressly called to his attention by plaintiff, and the agent represented to plaintiff that the question did not refer to any losses, except those sustained by him individually. The agent wrote and filled all the answers in the application, and upon his statement that they were satisfactory,...