Ritchie v. Home Ins. Co.

• Decision Date: 19 January 1904
• Citation: 104 Mo. App. 146,78 S.W. 341
• Parties: RITCHIE v. HOME INS. CO.
• Court: Missouri Court of Appeals

78 S.W. 341

104 Mo. App. 146

RITCHIE v. HOME INS. CO.

Court of Appeals at St. Louis, Missouri.

January 19, 1904.

FIRE INSURANCE—POLICIES—STATUTES—PROPERTY INSURED—VALUATION—MISREPRESENTATION —ESTOPPEL—EVIDENCE.

1. The statutes of the state relating to insurance in force at the time a policy is issued become a part of the contract by implication, with the same effect as if embodied therein.

2. Rev. St. 1899, § 7979, declares that in policies affecting real property, the value of the property, or the risk accepted and insured, as stated in the policy, shall be conclusive and incontestable in actions thereon. Held, that where, in an action on a policy covering "$1,500 on the shingle-roof frame building and additions," etc., taken on an oral application, the answer alleged an overvaluation of the property, but contained no allegation that, but for the alleged false statements, the policy would not have been issued, evidence tending to prove fraudulent representations of overvaluation anterior to the issuance of the policy was properly excluded.

3. Where a policy on real property authorized its cancellation at any time by the assured or insurer, the latter was not entitled to cancel the same after loss on the ground of fraudulent overvaluation.

4. Where insurer's soliciting agent, who negotiated a policy sued on, resided near where the property was located, was familiar therewith, and knew its value, and insurer had every opportunity, before loss, to inspect the property insured, it was estopped from denying the valuation of the property as stated in the policy.

Appeal from Circuit Court, Clark County; E. R. McKee, Judge.

Action by Elitha J. Ritchie against the Home Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Fyke Bros., Snider & Richardson, and Whiteside & Yant, for appellant. W. T. Rutherford, for respondent.

REYBURN, J.

This action is upon a policy of insurance issued December 27, 1901, covering "$1,500 on the shingle-roof frame building and additions, including foundations, occupied as a private house." January 4, 1902, consent was indorsed on the policy for occupancy of the barn by a careful tenant, and January 22, 1902, the barn was burned. From judgment upon the verdict of the jury in favor of plaintiff, defendant has appealed; and in this court chiefly one objection to the judgment below is encountered, namely, that defendant was not permitted to introduce evidence tending to prove that the policy was obtained by fraudulent representations anterior to the issuance of the policy respecting the value of the building, which was material to the risk. There was no written application taken for the policy, and it was solicited and obtained by the local agent of appellant; and the conversations between this agent and plaintiff in the negotiations preliminary to his acceptance of the risk were sought to be elicited, and were excluded by the court upon objections thereto by plaintiff. At the threshold of the case it may be stated that the answer contained no averment that, but for the alleged false statements, the policy would not have been issued. In Christian v. Ins. Co., 143 Mo. 460, 45 S. W. 268, the Supreme Court intimated that unless the answer pleads that the policy would not have been issued, had the company known the real state of the facts, no issue of misrepresentation is made; and in Summers v. Ins. Co., 90 Mo. App. 691, this court, citing the above decision, held an answer insufficient, containing no allegation that defendant would not have issued the policy, had it known the real state of facts misrepresented by assured in his application. While this principle is thus invoked and made applicable in this state to accident and life insurance policies, by analogy it would apply with equal force to insurance against fire, and has been so directed in other jurisdictions. Ætna Ins. Co. v. Simmons (Neb.) 69 N. W. 134. Sections 7969, 7970, 7979, Rev. St. 1899, being part of the statute law of this state when this policy was issued, became part of the contract, by implication, with same effect as if embodied therein. Christian v. Ins....