Russell & Co. v. State Ins. Co.

• Decision Date: 28 February 1874
• Citation: 55 Mo. 585
• Parties: RUSSELL & CO., Respondents, v. THE STATE INS. CO., Appellant.
• Court: Missouri Supreme Court

55 Mo. 585

RUSSELL & CO., Respondents,

v.THE STATE INS. CO., Appellant.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Linn Circuit Court.

A. W. Mullins and G. H. Shields, for Appellant.

I. Under an averment of performance, evidence showing an excuse for non-performance cannot be given. (Pier vs. Heinrichoffen, 52 Mo., 333; 4 Sandf, 665; 3 Abb. Pr., 562; 29 Iowa., 104; 12 Tex., 118; 7 Barb., 167-71; 2 Wend., 399; 8 Johns., 392; 9 Johns., 115; 3 Johns., 528, 11 N. Y., 25-33.)

II. Where insurance in a specially named company is permitted, it cannot be renewed without consent of the insurer in another company.

G. W. Easley, with whom was G. D. Burgess, for Respondents.

I. Defendant's waiver of time could be proved without being pleaded. (St. Louis Ins. Co. vs. Kyle, 11 Mo., 278; Martin vs. Fishing Ins. Co., 20 Pick, 389; Davis vs. N. H. Ins. Co. 7 Cow., 462; Insurance Co. vs. Lawrence, 2 Pet., [U. S.] 25; 2 Phil. Ins., 665, § 2122.)

II. No written indorsement of consent was necessary. The essential point was that the insurer should have notice of the additional insurance. This it had through its agent, who was also agent of the other company. The company knew of the fact and consented thereto. It could not afterward reap a harvest out of its connivance and fraud. (Carrugi vs. The Atlantic Ins. Co., 40 Geor., 135; Hayward vs. Nat. Ins. Co., 52 Mo., 281; 1 Phil. Ins. 501, § 904; Nat. Ins. Co., vs. Crane, 16 Md., 260, 295.)

NAPTON, Judge, delivered the opinion of the court.

This suit was upon a policy of insurance, to recover the amount of $2,500, alleged to have been lost in the destruction of the premises by fire. The only allegation in the petition, about which there is any question, is the following: “That on or about the 12th day of April, 1871, the property insured by the defendant, and at that date owned by plaintiffs, was destroyed by fire, and that within thirty days thereafter, to-wit: on April 15th, 1871, plaintiffs did give notice of said loss to said company and delivered at its office in Hannibal, Mo., a particular account of said loss, as required by the terms of said policy, &c.”

There was no demurrer to the petition The answer sets up various defenses, principally based on alleged fraudulent representations in regard to the value of the property, and on the fact of other policies being taken out by the assured, without the consent of defendant, and because of frauds and false swearing of the plaintiffs in regard to the amount of loss. There was a replication to the answer, denying the defenses set up in the answer. The verdict was for the plaintiffs, and a motion for a new trial and in arrest. On the trial the policy was read in evidence. One of its terms was, that no other insurance should be made, without consent of the company, indorsed on the policy.

It seems from the evidence in this case, connected with the verdict of the jury, under instructions, that on the 10th of May, 1870, Waters, one of the plaintiffs, applied to the defendant's agent at Linneus, for $2,500 insurance on their stock of goods, and represented their value at $10,000. On that day, there was an arrangement made between D. W. Russell & Co., of which firm Waters was a member, to consolidate their stock of goods with the goods of one Halliburton, who was occupying an adjoining store-house, and to take Halliburton into the concern; and invoices of the goods were commenced on that day and completed on the 13th or 14th of May. The amount of the two invoices was $9,278.16. The policy being in the name of D. W. Russell & Co. was then, with the consent of the defendant, assigned to Russell & Co., of which said Halliburton was a member. In this policy, Russell & Co. or D. W. Russell & Co. were allowed a policy previously taken in the Phœnix Insurance Co. of St. Louis, and on the expiration of that policy, which occurred on the 14th of January, 1871, a policy to the like amount was taken in the Home Ins. Co. of New York. Shortly after the formation of the company of Russell & Co., based on the consolidation of D. W. Russell & Co. with Halliburton, they sent a stock of merchandise to Botsville, and had an insurance on that stock to the amount of $2,500 in the company now sued, and in November, 1870, they removed this stock to Linneus. They then, as it appears from the letter of Strong, the secretary, wrote to him, asking the transfer of the Botsville policy of the merchandise removed to Linneus. The secretary declined, but suggested that the plaintiffs should take a policy for $2,500 in the Aurora Ins. Co., of Illinois, of which he was also agent, and the plaintiffs acceded to this suggestion and took the policy for $2,500 in the “Aurora.” On the 12th day of April, 1871, the store house of Russell & Co. was burned and the stock destroyed by the fire, and an agent of defendant, upon notice, immediately went to Linneus to inquire into the details of the loss. This agent, Cooms, at intervals continued his examination, and before it was completed the thirty days had elapsed. The proof of loss was, however, finally forwarded, and on its reception the Sec ary replied, objecting to the want of a detailed account of items of the property destroyed and the value of each article. Subsequently a corrected statement was sent to the company.

The evidence in the case related chiefly to the value of the stock in the store-house of plaintiffs, and as this was a matter for the jury it is unnecessary to be detailed.

The principal objection to the evidence was the admission of Strong's letter, dated June 14th, 1871, on the ground that no waiver as to time was pleaded and therefore no evidence of a waiver could be introduced; and the admission of a second letter purporting to come from Strong, dated Nov. 25th, 1870, which was objected to on the ground that it was not written or signed by him, as secretary of the State Ins. Co., and upon this last point the defendants proved, that it was not in his handwriting; but the plaintiffs proved that it was a letter received by them in reply to a letter addressed to the company.

The instructions given to the jury, at the instance of plaintiffs were these:

1st. If the jury believe from the evidence that the policy of the defendant had not expired at the time of the fire, and that the plaintiffs lost goods by said fire, covered by the policy, then the jury are bound to find for the plaintiffs, unless the policy has been forfeited, by some act of the plaintiffs.

2nd. If the jury believe that the defendant, after the expiration of thirty days after the fire, required the plaintiffs to furnish additional or further proof of loss, then such requirement of defendant was a waiver of the time within which said proofs were to be presented, and if the jury believe that the plaintiffs in making their proofs of loss, gave as particular an account and description of the quality and description of the goods lost, as was in their power, then such proof of loss was a substantial compliance with the conditions of the policy.

3rd. Although the jury may believe that the plaintiffs, did on the 14th January, 1871 procure from the Home Ins. Co. of New York, a policy of $2500 covering the same goods insured by the policy here sued on, yet if the jury believe that said Home policy was taken instead of one which plaintiffs had in the Phœnix Ins. Co., and which had expired before the issuing of the Home Ins. policy and that permission was given in the policy sued on for $2,500 insurance in the Phœnix Ins. Co., then the policy here sued on can in no way be affected by the said policy in the Home Ins. Co.

4th. If the jury believe from the evidence, that J. N. Strong was the agent of defendant, and also for the Aurora Ins. Co. at the time of issuing the policies read in evidence; that the policy issued by the Phœnix Ins. Co. had expired, and that by written consent of said Aurora Co., provided in its policy, plaintiffs were permitted to take other insurance to the amount of five thousand dollars, and that plaintiffs did after the expiration of the Phœnix policy, obtain from the Home Ins. Co. of New York, the policy issued by it, read in evidence, etc., then the fact that plaintiffs obtained said policy from the Home Ins. Co. did not vitiate the policy sued on, although the written consent of defendant was not indorsed on the policy.

5th. As to the estimate of the value of the goods mentioned in the first proof of loss made by plaintiffs, the rule of is, that the over valuation, in order to ground a defense thereon and defeat the plaintiff's action, must be made by the plaintiffs fraudulently and with a design to deceive the defendant. An over-estimate of the amount of their stock or of their profits arising from the business, if made innocently and mistakenly without fraudulent intent, is no bar to the plaintiffs' recovery of the actual loss sustained by the fire.

6th. Mistakes made by plaintiffs in the description of particular articles destroyed by the fire, or in any other respect, if not intended or designed to mislead or defraud the defendant, are not material and do not make out the charge of false swearing or fraud.

7th. If the jury find for the plaintiffs, they will assess their damages at one-third of the value of the entire stock covered by the policy sued on, provided the damages do no exceed the sum of $2,500, and to this sum the jury may add interest at the rate of 6 per cent. from and after 90 days after the proof of loss in this case.

The court also instructed the jury at the instance of defendant, giving all the instructions asked except two, which obviously conflicted with those given at the instance of plaintiff. The instructions given were as follows:

1st. The jury are instructed that the application made by D. W. Russell &...