Ross-Langford v. Mercantile Town Mutual Insurance Co.
| Decision Date | 01 December 1902 |
| Citation | 71 S.W. 720,97 Mo.App. 79 |
| Parties | LIZZIE ROSS-LANGFORD, Respondent, v. THE MERCANTILE TOWN MUTUAL INSURANCE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Original Opinion of December 1, 1902, Reported at: 97 Mo.App. 79. [Copyrighted Material Omitted]
Motion denied.
OPINION ON MOTION FOR REHEARING.
It is insisted that while this case is like that of Mensing v. The American Ins. Co., 36 Mo.App. 602, it has been decided contrary to the way that case was decided. Are the two cases alike?
In this case, the plaintiff in her written application for the policy warranted that the building which she sought to have insured was occupied as a dwelling, and it was upon this warranty the policy issued. The policy provided that if the insured misrepresented in writing any material fact concerning the subject of the insurance, it would be void. There was also a further provision to the effect that this policy is made and accepted subject to the foregoing stipulations and conditions: ". . . and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of the policy may be the subject of agreement indorsed hereon or added hereto, and to such provisions and conditions, no officer, agent or representative shall have such power or be deemed or held to have waived such provisions and conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission, affecting the insurance under the policy, exist or be claimed by the insured, unless so written or attached."
The policy in the Mensing case provided that the "insurance in this company is confined to farmhouses, barns and outbuildings, private dwellings and private barns in towns . . . and no authority is given to any agent to take any application in any other class of property, and not upon any property exposed within one hundred feet of a store, hotel, public boarding house, mill, manufacturing establishment, or other extra or special hazard." The application stated the property to be a dwelling house, when it was, in fact, a boarding house with a saloon in the front room. In this case, as has been set out, the property was stated in the application to be a dwelling house, when it was a dwelling, in one room of which was a millinery store, and this fact was known to the agent at the time he wrote the application.
In the Mensing case there was contained in the policy a limitation on the authority of the agent of which the insured had notice that no agent had authority to take any application for insurance on any other class of property than that specified in the limiting clause. The agent of the insurer knew at the time he accepted the application that the property was not a dwelling house but a boarding house and saloon. On this state of facts it was held by us in that case that the limitation contained in the policy was notice to the insured that the agent had no authority to insure a boarding house and saloon, and that the defendant had the right, as any other principal, to limit the authority of its agents; and to allow the plaintiff to recover would be to hold defendant liable for a risk it did not take.
In the present case, the plaintiff had notice that any statement respecting the subject of the insurance made by her to the agent, or by him to her, would not bind the insurer unless in writing. According to the rule declared in the Mensing case, it would seem that the knowledge of the agent that the property was misdescribed in the application was of no consequence and would not validate the risk. If the insurer had the right to limit the power of its agent in the one case, it is difficult to see why it did not in the other. In principle the two cases are quite alike. If the Mensing case had not been trenched upon or overthrown by later cases, which we are bound to follow, it would appear this case was incorrectly decided.
In the later case of Shoup v. Ins. Co., 51 Mo.App. 286 where the policy expressly provided that the insurer should "not be bound by act or statement made to any...
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