Rogers v. Home Insurance Company of New York

• Decision Date: 03 April 1911
• Parties: HUGH L. ROGERS, Respondent, v. HOME INSURANCE COMPANY OF NEW YORK, Appellant
• Court: Kansas Court of Appeals

136 S.W. 743

155 Mo.App. 276

HUGH L. ROGERS, Respondent, v. HOME INSURANCE COMPANY OF NEW YORK, Appellant

Court of Appeals of Missouri, Kansas City

April 3, 1911

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

Judgment reversed.

F. P Ellis, R. H. Musser and Fyke & Snider for appellant.

(1) The court erred in admitting testimony of respondent of alleged conversations with appellant's agent, Doherty, as to his intention to procure other insurance. To constitute a waiver of the condition against other insurance something more is necessary than notice that insured intends or expects to procure additional insurance. Hutchinson v. Ins Co., 21 Mo. 97; Deitz v. Ins. Co., 38 Mo. 85; Rothschild v. Ins. Co., 62 Mo. 356; Carpenter v Ins. Co., 16 Pet. 494; Insurance Co. v. Mowry, 96 U.S. 544; Insurance Co. v. Hurd, 37 Mich. 11; Insurance Co. v. Norwood, 57 Kan. 610; Kimball v. Ins. Co., 8 Gray 33; Slobodisky v. Ins. Co., 72 N.W. 483 (Neb.); Turner v. Ins. Co., 16 F. 454; Atlas Reduction Co. v. Ins. Co., 71 C. C. A. 21, 138 F. 497; Gray v. Ins. Co., 155 N.Y. 180. (2) There being no evidence whatever that knowledge of the fact that respondent had procured other insurance or the amount thereof was brought home to appellant, the court should have sustained appellant's demurrer at the close of respondent's case, and at the close of all the evidence. (3) The court erred in sustaining respondent's objection to the following question, propounded to witness, Stuckey: State whether or not at that time (May 23, 1906) you asked Wm. A. Rodgers what other insurance he had upon this property and if he told you these Home policies were all the insurance he had? Wm. A. Rodgers was respondent's son and agent. There was a question of veracity between Wm. A. Rogers and Doherty. A foundation for impeachment had been laid by asking Wm. A. Rogers if he did not make such statement. (4) The court erred in admitting evidence of the value of attorney's fees. The respondent's evidence wholly fails to establish any state of facts to warrant the jury in finding that appellant's refusal to pay was vexatious. Blackwell v. Ins. Co., 80 Mo.App. 75; Renfro v. Ins. Co., 129 S.W. 44.

John A. Cross for respondent.

(1) It cannot be denied that the evidence tended strongly to establish a waiver of the conditions of the policy pleaded by appellant in its answer, the weight and sufficiency of which evidence is always a question of fact for the jury to determine. 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 taking out of the additional insurance respondent notified appellant's agent Doherty, of his intention to do so, and he orally consented to the same. 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 defense to this suit. Nickell v. Ins. Co., 144 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; Hayward v. Nat. Ins. Co., 52 Mo. 181. Authorities have held, that where it is understood between the insured and the agent of the company, that the former intends to secure additional insurance, a provision in the policy forbidding the insurance, will be waived. McCabe v. Ins. Co., 14 Hun. 599; Hartford Ins. Co. v. McLemore, 7 Tex. Civ. App. 317; Carpenter v. Ins. Co., 61 Mich. 635. (2) The court did not commit error in admitting in evidence the value of attorneys fees, or giving respondent's instruction number three. The statute authorizing such penalty is constitutional. Fidelity Mut. Life Ins. Co., 185 U.S. 308; Ins. Co. v. Lewis, 187 U.S. 335; Ins. Co. v. Dobuey, 189 U.S. 301; Keller v. Ins. Co., 198 Mo. 440. (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. Ry. Ins. Co., 45 Mo. 221; Keller v. Ins. Co., 198 Mo. 440; Kellogg v. Ins. Co., 133 Mo.App. 402; Utz v. Ins. Co., 139 Mo.App. 156. Respondent's instruction number 3, and appellant's instruction number 5 correctly declared the law, and submitted this issue fairly to the jury. Appellant is in no position to complain at the giving of instructions upon the part of the respondent, for the reason, that no objections were made to the instructions at the time they were given, and exceptions saved to the ruling of the court thereon. Sheets v. Ins. Co., 126 S.W. 413; State v. Reed, 128 S.W. 4. (4) No attempt whatever was made by respondent's counsel in the trial of this cause to prove that one company or any company had gone into the hands of a receiver, and an examination of the record that no such attempt was made in this case.

OPINION

ELLISON, J.

This action is based on a policy of fire insurance for $ 3000, in which plaintiff recovered the full amount with interest and in addition thereto the sum of $ 300 attorneys' fee and $ 300 penalty for alleged vexatious refusal to pay.

The policy was issued on the 16th of November, 1905, and contained a provision that if any other or additional insurance was on the property when this one was issued, or if any other was taken after its issuance. the policy should be wholly void, unless consent for such other insurance was endorsed on the policy. The record discloses that at the time the policy was issued there was no other insurance, but that several months afterwards, in May, 1906, other insurance in different companies, in amounts aggregating four thousand dollars, at times from the first to the 23d of May, was taken by plaintiff without having defendant's consent for any of them endorsed on the policy. To avoid this failure to comply with this provision in the policy--a provision always upheld by the courts--plaintiff pleads a waiver, and that is the principal question for our consideration.

We may start with two statements: First, that provisions avoiding a policy for additional insurance, taken without the insurer's consent, and endorsement upon the policy, are willingly upheld as being in the interest of morality as well as justice, by preventing the temptation to arson and perjury which sometimes arises from overinsurance; and, second, that such provisions may be waived by the insurer, or its agent acting for it.

The waiver pleaded by plaintiff is not that shown in evidence; on the contrary, it is affirmatively disproved. The waiver is set out both in the petition and reply. In the petition it is explicitly stated to be that plaintiff had the other insurance when he took out the policy in suit and that defendant's agent knew it. And this is repeated in the reply, where it is alleged that defendant knew the amount of insurance on the property at the time it issued the policy in suit, and prior thereto, and at the time of the fire had full information thereof and, with knowledge of all the facts, made no objection to the other insurance, but consented thereto and waived the giving of notice thereof by plaintiff and waived the endorsement thereof on the policy.

It is shown, and is conceded, that at the time this policy was issued there was no other insurance, and the waiver now claimed is based on a different state of facts, viz. on knowledge of policies taken out several months after the issuance of the policy in suit. But no objection seems to have been made on this score at the trial and we therefore pass it by, and will address ourselves to a consideration of the evidence said to establish the waiver. It was given by plaintiff and his son and though disputed by testimony in behalf of defendant, we must accept what it tends to prove as the facts in the case.

Matters transpiring between defendant's agent and plaintiff and his son, are what is relied upon to establish the waiver. This agent was the cashier of a local bank where plaintiff did business and where he had a private box in which he kept his papers, including the policy in suit. Plaintiff testified that when he took out the policy (in November, 1905) the agent said he ought to have more insurance and spoke of $ 10,000 being the proper amount; but he said what he was then taking was enough at that time. Then, in the latter part of April, 1906, more than five months afterwards, he met the agent on the street and told him that he "was about ready to take out other insurance now and I would send my boy there (to the bank) to get the policy." He further testified that the agent asked to issue the other insurance himself, but he declined, saying that he wished to patronize others also and that the agent said: "All right, if that is your choice." And that he afterwards sent his boy to the bank to get the present policy in order to copy description, terms, etc., in the policies he stated he intended to take. He stated that this conversation was in the latter part of April, and the first additional insurance was dated the first of May, but how many days between the conversation and the date of the policy he could not say. The son, however, testified that afterwards his father told him to go to the bank to get the policy from his box, and that he afterwards met the agent on the street and told him his father wanted to get the policies, that he was going to take out enough additional insurance to make it in the neighborhood of $ 10,000 on the buildings and machinery, and wanted to have the terms alike. The agent said "All right, I will get them for you." He then said he went to the bank the next day and got the policies and the next day after that the policy of May 1st was issued. But the other...