Rothschild v. American Cent. Ins. Co.

• Decision Date: 31 October 1881
• Citation: 74 Mo. 41
• Parties: ROTHSCHILD, Plaintiff in Error, v. THE AMERICAN CENTRAL INSURANCE COMPANY.
• Court: Missouri Supreme Court

74 Mo. 41

ROTHSCHILD, Plaintiff in Error,

v.THE AMERICAN CENTRAL INSURANCE COMPANY.

Supreme Court of Missouri.

October Term, 1881.

1. Insurance: CANCELLATION OF POLICY.

A current policy of insurance cannot be cancelled, except by virtue of a power reserved in the policy, or by agreement of the parties. Such reservation will never be presumed, but must be distinctly shown.

2. ______: ______: PRINCIPAL AND AGENT.

An agent to procure insurance has no implied power to consent to the cancellation of a policy once procured and delivered.

Error to St. Louis Court of Appeals.

AFFIRMED.

James O. Broadhead for plaintiff in error.

Madill & Ralston for defendant in error.

NORTON, J.

Plaintiff instituted this suit in the circuit court of St. Louis county to recover $2,500 on a policy of insurance issued by defendant insuring his stock of goods for that amount. On a trial of the cause, it was submitted to the court, and after hearing the evidence, the court sustained a demurrer to it and rendered judgment for defendant, from which plaintiff appealed to the St. Louis court of appeals, which affirmed the judgment, and the case is before us on writ of error. The opinion of the court of appeals delivered by Lewis, P. J., contains an accurate statement of the evidence as well as of the law applicable to the facts, and after full consideration of the record we affirm the judgment on the ground therein stated, making no addition thereto except to cite in support of it the following authorities: Hathorn v. Germania Ins. Co., 55 Barb. 28; White v. Madison, 26 N. Y. 117; Alliance Ins. Co. v. Swift, 10 Cush. 433; Fabyan v. Union M. F. Ins. Co., 33 N. H. 203; Story's Agency, § 246.

The opinion is as follows:

“The answer set up several defenses, of which only one need be here considered. The policy contained the following condition, viz: ‘If the assured shall have or hereafter make any other insurance on the property hereby insured, or any part thereof, without the consent of this company written hereon, this policy shall be void.’ It appeared from the testimony that H. M. Blossom, an insurance broker in St. Louis, undertook for the plaintiff insurance in various companies, to the aggregate amount of $15,000. He prepared an application containing a diagram of the plaintiff's premises, on which he wrote the name of each company, as its consent was obtained, with the sum for which it was to insure. The list, when completed, stood thus: Citizens, $2,500; American Central, $2,500; The Boatman's, $2,500; The Commercial, $2,500; The Amazon (a Cincinnati company), $3,000; The St. Louis, $2,000. Blossom then obtained all these policies accordingly, and delivered them to the plaintiff. On the application, and on the policy issued by defendant, there were memoranda showing that the total of insurance was to be $15,000. Sometime afterwards, while the plaintiff was in Louisiana, the agent of the Amazon company gave to Blossom a written notice that its policy was cancelled, and requested the return thereof. Blossom thereupon proceeded to get other insurance, and had obtained a policy of $1,500 in the Pennsylvania Insurance Company, when the insured property was destroyed by fire.

Upon this state of facts, the plaintiff insists that there was no violation of the condition in the policy. He holds that nothing more was required than that the total insurance should never exceed $15,000; and that, by the substitution of the Pennsylvania policy for that of the Amazon, the amount was in fact reduced to $13,500, at the time of the loss. To this the...