Rogers v. Connecticut Fire Insurance Company

• Decision Date: 12 June 1911
• Citation: 139 S.W. 265,157 Mo.App. 671
• Parties: HUGH L. ROGERS, Respondent, v. CONNECTICUT FIRE INSURANCE COMPANY, Appellant
• Court: Kansas Court of Appeals

139 S.W. 265

157 Mo.App. 671

HUGH L. ROGERS, Respondent, v. CONNECTICUT FIRE INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 12, 1911

Appeal from Clinton Circuit Court.--Hon. A. D. Burnes, Judge.

AFFIRMED CONDITIONALLY.

R. H Musser and F. B. Ellis for appellant.

(1) Plaintiff's instruction numbered 1 is erroneous in that it fails to authorize the jury to take into consideration, in making up their verdict, the defense to said policy, namely "that said property was not a total loss, only partial," and said instruction authorizes a verdict for plaintiff if they find that plaintiff notified defendant of said loss, and defendant denied liability under said policy thus directing and telling the jury that if such was done, defendant's full liability under said policy was settled and fixed, under said circumstances, and further recites if defendant failed to furnish a blank proof of loss, etc., this aided said liability. R. S. 1909, sec. 7022; Stevens v. Ins. Co., 120 Mo.App. 88; Branigan v. Ins. Co., 102 Mo.App. 70; Havens v. Ins. Co., 123 Mo. 403. (2) Plaintiff's instruction No. 2 adds to the error in instruction No. 1, giving additional reasons for the consideration of no other defense by the jury than the additional insurance not being indorsed upon the policy, and the record does not support it. Atlas Reduction Co. v. Ins. Co., 71 C. C. A. 21, 138 F. 497; Gray v. Ins. Co., 155 N.Y. 180; Hutchinson v. Ins. Co., 21 Mo. 97; Deitz v. Ins. Co., 38 Mo. 85; Rothschild v. Ins. Co., 62 Mo. 362; Carpenter v. Ins. Co., 16 Pet. 494; Turner v. Ins. Co., 16 F. 454. (3) If this property had any value outside of the purpose for which it was used, there cannot be a total loss within the meaning of the law, and the instruction does not take into account any ability there might be to repair or restore the property, of which there was a great amount of creditable testimony in the case. Brown v. Weldon, 99 Mo. 465; Havens v. Ins. Co., 123 Mo. 123. (4) The mere fact that defendant litigated this claim of total loss of plaintiff does not prove it vexatious, nor justify its submission to a jury. There was a just and reasonable defense supported by ample evidence. Utz v. Ins. Co., 139 Mo.App. 156; Blackwell v. Ins. Co., 80 Mo.App. 75; Renfro v. Ins. Co., 129 S.W. 448; White v. Reitz, 129 Mo.App. 313; McGinnis v. Railroad, 200 Mo. 363.

John A. Cross for respondent.

(1) It cannot be successfully denied that the evidence in this case establishes a waiver of the condition of the policy pleaded by appellant in its answer, the weight and sufficiency of which is always a question of fact for the jury to determine. Pelkington v. Ins. Co., 55 Mo. 172; Gale v. Ins. Co., 33 Mo.App. 664; Hoffman v. Ins. Co., 56 Mo.App. 301; Porter v. Ins. Co., 62 Mo.App. 526; 2 Wood Fire Ins., p. 943. Prior to the issue and delivery of the policy to respondent, appellant's agent, Stuckey, had full knowledge of all the other additional insurance on the property covered by the policy in suit. This agent had full authority under our decisions to waive the written conditions of the policy as to additional insurance, being in all things the alter ego of the company. The above facts constitute a waiver of the terms of the policy, and the appellant is estopped from pleading a forfeiture of the same as a defense to this suit. Nichell v. Ins. Co., 44 Mo. 420; Laundry Co. v. Ins. Co., 151 Mo. 90; Thompson v. Ins. Co., 169 Mo. 12; Polk v. Ins. Co., 114 Mo.App. 514. (2) The property insured by the policy in suit was "wholly" destroyed within the meaning of section 7020, Revised Statutes of 1909. Nave v. Ins. Co., 37 Mo. 430; Haven v. Ins. Co., 123 Mo. 403; Banard v. Ins. Co., 38 Mo.App. 106; Jacobs v. Ins. Co., 61 Mo.App. 572; Marshall v. Ins. Co., 80 Mo.App. 18; O'Keefe v. Ins. Co., 140 Mo. 558. (3) The question of vexatious delay is a question of fact to be determined by the jury from all the facts and circumstances in the case. Brown, Admr., v. Ins. Co., 45 Mo. 221; Keller v. Ins. Co., 198 Mo. 440; Kellogg v. Ins. Co., 133 Mo.App. 402; Uts v. Ins. Co., 139 Mo.App. 156. It was not necessary that respondent should offer evidence of vexatiousness. Vexation can be inferred by the trier of the facts from the facts and circumstances of the case. Brown, Admr., v. Ins. Co., 45 Mo. 221.

OPINION

JOHNSON, J.

This suit is on a fire insurance policy of $ 1000, issued by defendant to plaintiff May 26, 1906. Plaintiff was the owner and operator of an electric light plant in the city of Lathrop and the policy in suit covered the gas engine and dynamo which were in his power house and so attached thereto that they must be considered a part of the realty and not as personal property. Two days after the policy was issued, the power house was destroyed by fire and the machinery, of which the engine and dynamo were the principal parts, was so badly damaged that plaintiff claims it became valueless for the purposes of its use as an integral part of the power plant.

The evidence of plaintiff is to the effect that the machinery had no value after the fire except what might be realized from it if sold as junk, while evidence introduced by defendant tends to show that by an outlay of $ 2500, in the replacement of destroyed or worthless parts and in the repairing of damaged parts the engine and dynamo could be restored to usefulness.

The policy contained a provision that if there was other insurance on the property the policy would be void unless such other insurance was indorsed on the policy and the only additional insurance indorsed was a policy of $ 4000 previously issued by the Home Insurance Company of New York. In fact, at that time, there was other insurance on the engine and dynamo amounting to $ 4200 and the policy in suit brought the total outstanding insurance on that property to $ 9200. Defendant claims that it had no knowledge of any other insurance than that indorsed on the policy until after the fire. Plaintiff's evidence tends to show that the exact facts respecting the other insurance were stated to the agent who represented defendant in the transaction before the policy was issued and that defendant knew that with the policy in suit the property was insured for $ 9200.

It appears that defendant's agent was in the banking business at Lathrop and, fearing defendant might decide to cancel the policy, he did not deliver it to plaintiff but kept it in the bank until about two weeks after the fire when he delivered it. He collected the premium of thirty-one dollars from plaintiff and, deducting his commission, remitted the remainder. Defendant received this premium, has retained it to this day and at no time has even offered to return it. The agent admits that the day after the fire he knew just what insurance was on the property and that he delivered the policy. We quote from his cross-examination:

"Q. The day after the fire Pross told you the whole amount of insurance he had? A. Yes.

"Q. And you had this policy in your company? A. Yes, sir.

"Q. And you charged up on the bank books thirty-one dollars against Mr. Rogers, the premium on that policy, after the fire? A. Yes.

"Q. You took that thirty-one dollars to your credit? A. Yes.

"Q. And returned eighty-five per cent of it to the company and kept out fifteen per cent? A. Yes, I kept out my commission.

"Q. Did you return eighty-five per cent to the company? A. Yes.

"Q. Was that ever returned to Mr. Rogers? A. No.

"Q. You never returned him your fifteen per cent? A. No.

"Q. Sometime in June you delivered this policy to Mr. Rogers? A. Yes.

"Q. Do you know this man Fleming? A. Yes.

"Q. He is the state agent? A. I understand him to be.

"Q. Didn't Fleming tell you before you delivered that policy that they did not deny liability on that policy?"

(Objections.)

"Q. Didn't he tell you, Sam, in talking about it 'We don't deny liability?' A. He told me that, but I don't remember whether it was at that time or later.

"Q. But it was before you delivered the policy? A. No, I think not. I am not positive on that point, though.

"Q. What time did you deliver the policy? A. After he and Mr. Welsh came to Lathrop. I don't think I told him anything about holding the policy.

"Q. You held it a sufficient length of time and when they didn't tell you not to deliver it you delivered it? A. My purpose in holding the policy was to give the office at Chicago time to reject it, not to see Mr. Fleming. I don't know that Mr. Fleming ever knew I held the policy, I don't remember about that. But I held it to hear from the Chicago office before I delivered it to Mr. Rogers.

"Q. When did you charge this thirty-one dollars premium to Mr. Rogers? A. I think about the middle of June."

Evidence was heard on the issue of the actual value of the machinery from which it is disclosed that the property was not worth to exceed $ 8000. The cause was submitted to a jury and a verdict was returned for plaintiff in the sum of $ 1000 on the policy and $ 100 for attorney's fees. Defendant appealed.

A number of questions of law raised by the pleadings, evidence and instructions are discussed in the briefs and we shall dispose of the controlling questions in their logical order.

At this term we reversed a judgment recovered by plaintiff against the Home Insurance Company of New York on the policy to which we referred in our statement of facts. [Rogers v. Ins. Co., 136 S.W. 743.] Speaking through ELLISON, J., we held in that case that plaintiff had violated the provision of the policy relating to additional insurance and that the evidence, instead of showing a waiver of that provision, affirmatively disproved the contention of plaintiff that there was a waiver.

The policy involved in that suit was the first insurance procured by plai...