Royle Mining Company v. The Fidelity & Casualty Company of New York
| Decision Date | 04 December 1911 |
| Parties | ROYLE MINING COMPANY, Respondent, v. THE FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant |
| Court | Missouri Court of Appeals |
Motion for Rehearing Overruled January 8, 1912.
Rehearing Denied 161 Mo.App. 185 at 211.
Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
H. W Currey and Percy Werner for appellant.
(1) The elements of an estoppel in pais are wanting in the case at bar. The first essential is a full knowledge of all the facts and of the party's rights. Herman on Estoppel, 452; Taylor v. Zepp, 14 Mo. 489; Terrill v Boulware, 24 Mo. 257; Burke v. Adams, 80 Mo. 514; Acton v. Dooley, 74 Mo. 69; Garesche v. Ins. Co., 146 Mo. 451; Burrill v. Ins. Co., 211 Mo. 158; Tennent v. Ins. Co., 133 Mo.App. 361. (2) The party against whom estoppel is invoked must have knowledge of all the material facts and not merely of a portion of them. Tennent v. Ins. Co., 133 Mo.App. 365. (3) So, too, a waiver cannot exist without knowledge. Waiver presupposes knowledge. Haysler v. Owen, 61 Mo. 270; Johnson County v. Lowe, 72 Mo. 637; Nevius v. Moore, 221 Mo. 356; Gallies v. Modern Woodmen, 98 Mo.App. 527; Advance Thresher Co. v. Pierce, 74 Mo.App. 684; Burgess v. Ins. Co., 114 Mo.App. 181; Benecke v. Ins. Co., 105 U.S. 359, 26 L.Ed. 992; Globe Ins. Co. v. Wolffe, 95 U.S. 333, 24 L.Ed. 390; Pence v. Langdon, 99 U.S. 581, 25 L.Ed. 420; Ins. Co. v. Thomas, 82 F. 409; Hambleton v. Ins. Co., 6 Bissell, 95; Wilson v. Carpenter, 91 Va. 192; Murray v. Heinze, 17 Mont. 367; Findeisen v. Ins. Co., 57 Vt. 525. (4) In order to establish a waiver, or a right founded on estoppel, it must appear that the party pleading the waiver or estoppel has been led to do, or omit to do, something from which action or omission prejudice has resulted to him. Weir v. Lumber Co., 186 Mo. 396; Rosencranz v. Swofford Bros., 175 Mo. 537; Keet-Rountree D. G. Co. v. Ins. Co., 100 Mo.App. 514; Ins. Co. v. Wolff, 95 U.S. 326, 24 L.Ed. 390; 2 May on Insurance (4 Ed.), sec. 507. (5) Where there is evidence tending to prove that a letter was mailed, properly addressed and the postage prepaid, this is prima facie evidence of its receipt. Pier v. Heinrichshofen, 67 Mo. 169; State v. Gritzner, 134 Mo. 523; Ward v. Transfer Co., 119 Mo.App. 88; Herf v. Railroad, 100 Mo.App. 181; Bank v. Pezoldt, 95 Mo.App. 410; Rosenthal v. Walker, 111 U.S. 185. (6) Letters, declarations and acts, contemporaneous with the act in question, are admissible in evidence as showing the knowledge and information which the party had who performed the act, and to show the circumstances surrounding the act. 1 Greenleaf on Evidence (13 Ed.), secs. 101, 108; 11 Ency. of Evidence, 391; Erfort v. Consalus, 47 Mo. 213; Clark v. Loan Co., 46 Mo.App. 253; Folk v. Burnett, 37 Mo.App. 566; Friedman v. Holberg, 74 Mo.App. 33; Beaver v. Taylor, 1 Wall, 642, 17 L.Ed. 601.
Haywood Scott for respondent.
(1) The objection that a liability is not within the terms of a policy of insurance may be waived; and when the insurer undertakes the control of the defense of an action brought by the injured person against the insured, with full information of the character of the action and without any reservation or notice to the insured that it did not intend to waive such objection, it will be deemed to have waived the objection, that the liability was not within the terms of the insurance policy. Canning Co. v. Guaranty & Accident Co., 133 S.W. 664; Mining Co. v. Fidelity & Casualty Co., 126 Mo.App. 104; Myton v. Fidelity & Casualty Co., 117 Mo.App. 442; Tozier v. Accident & Guaranty Corporation, 109 N.W. 410, 94 Minn. 478, 103 N.W. 509; Employers' Liability Assurance Corp. v. Coal Co., 141 F. 962; Cement Co. v. Travelers Insurance Co., 11 A.D. 411, 42 N.Y.S. 285; 11 Am. & Eng. Ency. Law, 13. (2) The insurance company, having elected to recognize the validity of the main clause in the contract of insurance, and assuming its liability thereunder as an indemnitor, it waived the provisions of such repugnant subsequent clause. K. C. M. & B. Co. v. Railroad, 151 Mo. 390; St. Joseph v. Railroad, 116 Mo. 636; Allen v. Hickey, 156 Mo. 59. (3) Under a policy of insurance it is not even necessary to plead waiver. McCulloch v. Ins. Co., 113 Mo. 606; Mickell v. Ins. Co., 144 Mo. 420; James v. Association, 148 Mo. 1; Murphy v. Ins. Co., 70 Mo.App. 84. (4) But the waiver may be pleaded in a reply. Ehrlich v. Ins. Co., 103 Mo. 231; Pierce Water Co. v. Pierce City, 61 Mo.App. 471; Moore v. Granby, 80 Mo. 86; Zoll v. Cornahan, 83 Mo. 35; Whiteside v. McGruder, 75 Mo.App. 364. (5) The court did not err in excluding such letters as it excluded, as there was no evidence that they had been deposited in the postoffice, or mailed, stamped and directed to the proper address. Phillips v. Scott, 43 Mo. 89; Dunlap v. U.S. 165 U.S. 486; Rosenthal v. Walker, 111 U.S. 185. (6) Self-serving declarations--communications between the principal and agents or between the general agent and the sub-agent are not admissible on behalf of the principal as they are self-serving declarations. Kellog Lumber Co. v. Mfg. Co., 140 Wis. 341, 122 N.W. 737; Forrester Co. v. Evatt, 90 Ark. 301, 119 S.W. 282; Erie Dispatch Co. v. Cecile, 112 Ill. 180, 10 Ency. Pl. & Pr. 21. (7) Any omission of defendant's affirmative defense in instructions for plaintiff is cured by instructions given for defendant. Schroeder v. Michel, 98 Mo. 48; Reames v. D. G. Co., 99 Mo.App. 403; Kingman & Co. v. Shawley, 61 Mo.App. 60; Ellinson v. Railroad, 60 Mo.App. 689; Lemser v. Mfg. Co., 70 Mo.App. 219; Schaaf v. Fries, 77 Mo.App. 356.
NIXON, P. J. Cox, J., concurs. Gray, J., having been of counsel, not sitting.
This suit was commenced in the circuit court of Jasper county by respondent against appellant upon an indemnity policy of insurance executed by the appellant to the respondent.
The plaintiff was operating a mine in Jasper county and procured of the defendant an employers' indemnity policy. By this policy, the defendant agreed to indemnify plaintiff against any loss from commonlaw liability for damages on account of bodily injuries or death accidentally suffered by any employee or employees of the plaintiff while on duty, to the extent of $ 1,500 in any one case. Among other things, it became the duty of the assured under the policy upon the happening of an accident to give immediate notice to the insurance company with the fullest information obtainable and full particulars of all claims made on account of said accident, and to co-operate with and render the insurance company all the assistance in its power; and, when a suit was commenced against the assured for damages on account of an accident covered by the policy it was required to immediately forward to the home office of the insurance company the summons or other process, and the insurance company agreed at its own cost to defend against such proceedings in the name and on behalf of the assured or to settle the claim unless it should elect to pay the indemnity provided for. It was further provided that the assured should not settle any claim or interfere with any negotiations for any settlement without the consent of the insurance company, and the assured was further required, at the request of the insurance company, to aid in securing all the information and evidence necessary in effecting a settlement or procuring evidence.
On the 5th day of March, 1903, while the policy was in force, a laborer by the name of Marvin McDaniels, while employed in plaintiff's mine, was fatally injured and died. His employment was of the character covered by the policy. He was single and unmarried but left surviving him his mother, Nancy McDaniels. Within proper time his mother commenced suit against the plaintiff to recover the sum of $ 10,000 as damages for the alleged negligent killing of said Marvin McDaniels. Soon after the death of Marvin McDaniels a coroner's inquest was held and a copy of the evidence taken was forwarded to the insurance company. From that time on, the insurance company made more or less examination of the circumstances attending Marvin McDaniels' injuries and death, by inquiry and by the investigations of its special examiner. When suit was commenced by Nancy McDaniels, a copy of the summons was sent to the insurance company, and the plaintiff furnished the information and complied with the requirements of the policy of insurance on its part. At first, the insurance company seemed to be in some doubt as to whether the liability of plaintiff was a common-law liability, or a statutory liability by reason of a failure to observe what is known as the prop statute (now Sec. 8473, R. S. 1909). Furthermore, the defendant seems to have been undecided as to whether it should appear and defend the McDaniels action, but finally, upon being urged to do so by its local manager, it notified its attorney to take charge of the defense of the McDaniels suit upon the understanding that in so doing it did not waive any of the exemptions under its indemnity policy. At that time defendant wrote and sent a letter to its local manager notifying the plaintiff (Royle Mining Company) of the terms on which it took charge of the litigation. The attorney for the insurance company took charge of such litigation and later associated with him at the request of the plaintiff, Judge Howard Gray, as assistant attorney, and the two made a joint defense of the suit. The plaintiff, Nancy McDaniels, recovered a judgment for the sum of $ 1,000 and costs of suit. The judgment was predicated upon the plaintiff's liability by reason of its failure to observe the prop statute. From this judgment an appeal was taken to the ...
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