Senor And Muntz v. Western Millers' Mutual Fire Insurance Company

• Decision Date: 23 March 1904
• Citation: 79 S.W. 687,181 Mo. 104
• Parties: SENOR and MUNTZ v. WESTERN MILLERS' MUTUAL FIRE INSURANCE COMPANY, Appellant
• Court: Missouri Supreme Court

79 S.W. 687

181 Mo. 104

SENOR and MUNTZ v. WESTERN MILLERS' MUTUAL FIRE INSURANCE COMPANY, Appellant

Supreme Court of Missouri, Second Division

March 23, 1904

Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.

Reversed and remanded (with directions).

Ward & Hadley for appellant.

(1) Defendant's policy of insurance is to be interpreted in all respects by the same rules as other contracts, and so as to ascertain the meaning and intention of the parties thereto from the whole instrument. Renshaw v. Ins. Co., 103 Mo. 595; Brewing Co. v. Ins. Co., 63 Mo.App. 663; Hoover v. Ins. Co., 93 Mo.App. 111. (2) The Commercial Union Assurance Company's policy having been taken out by plaintiff Senor, on property already insured by defendant's policy, while defendant's policy was in force and without defendant's consent, which consent by the terms of defendant's policy was necessary defendant's policy, by the express terms thereof, was invalidated. Ins. Co. v. Blum, 76 Tex. 653, 13 S.W 572; Commercial Union Assurance Co. v. Norwood, 57 Kan. 610, 47 P. 529; Bush v. Ins. Co., 85 Mo.App 155; Ins. Co. v. Ewing, 92 F. 111; Joyce on Insurance, sec. 2480. (3) Defendant's policy of insurance having been invalidated by the act of plaintiff Senor, in taking out Commercial Union Assurance Company's policy, on his mill building, machinery, etc., is void also as to plaintiff Muntz. 2 May on Insurance (3 Ed.), sec. 452d; Ostrander on Insurance, sec. 117; Richards on Insurance, sec. 158; Baldwin v. Ins. Co., 60 N.H. 164; Bates v. Ins. Co., 10 Wall. 33; Hoxsie v. Ins. Co., 6 R. I. 517; Harrington v. Ins. Co., 124 Mass. 126; Grosvenor v. Ins. Co., 17 N.Y. 391.

Harkless, O'Grady & Crysler for respondents.

(1) The policy in question which contained the condition "$ 3,500 total insurance permitted concurrent herewith on buildings, boilers, engines and machinery," permitted and allowed the insured to take out a total of $ 3,500 additional insurance, which would be concurrent with the $ 3,500 already issued. (2) If doubt existed, however, as to what this clause did mean, it must be resolved in favor of the insured. Cook on Insurance, sec. 4; Cunningham v. Union Co., 82 Mo.App. 607. (3) But in any event the defendant could not contend that the policy was void without returning the unpaid portion of the premium under the express provision of the policy which read: "If this policy shall be cancelled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of the policy or last renewal, this company retaining the customary short rate." And the company can not contend that the policy is void and at the same time retain the premium under this condition of the policy. Supreme Tent v. Volkert, 25 Ind.App. 627; Stylow v. Wisconsin Odd Fellows, 69 Wis. 224, 2 Am. St. Rep. 738. (4) The policy provided that the company in case of loss should "not be liable for a greater proportion than the amount insured should bear to the whole insurance whether valid or not, or by solvent or insolvent insurers covering such property," thereby recognizing that other insurance might be taken out and the insured certainly had the right to assume that he had this right. (5) As against the plaintiff Muntz, the mortgagee whose interest was $ 3,000, there could be no defense, whatever may be the construction of the policy as to the amount of insurance that should be taken out, because the policy contained the clause: "If with the consent of this company an interest under this policy shall exist in favor of a mortgagee or of any person or corporation having an interest in the subject of insurance, other than the interest of the insured, described herein, the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance, relating to such interest, as shall be written upon, attached or appended hereto," and the slip attached to the policy setting out the interest of the mortgagee in no way made the conditions of the policy a part thereof, nor were they written upon, attached or appended thereto. Ins. Co. v. Bank, 47 Neb. 717; Boyd v. Ins. Co., 25 Wash. 447, 65 P. 785.

OPINION

FOX, J.

"This suit was instituted October 19, 1900, in the circuit court of Jackson county, Missouri, and is on a fire insurance policy issued by defendants June 28, 1899, which contained, among others, the following provisions.

"'In consideration of the stipulation herein named and of $ 123.75 premium, does insure C. M. Senor for the term of five years, from the 28th day of June, 1899, at noon, to the 28th day of June, 1904, at noon, against all direct loss or damage by fire and lightning, except as hereinafter provided to an amount not exceeding forty-five hundred dollars, to the following described property, while located and contained as described herein, and not elsewhere, to-wit: $ 1,200 on his threestory and basement frame partition steam flouring mill building, with metal roof and including grain bins therein, and one-story iron brick-lined boiler and engine house with metal roof adjoining, situated in Conway Springs, Sumner county, Kansas, and known as "The Pioneer Roller Mills."

"'$ 1,600 on mill machinery, mill wright work, shafting, gearing, belting, tools, implements and fixtures in use, and all bins, except grain bins, while in said mill building.

"'$ 700 on steam boilers, engines and connections, heaters, pumps and connections while in said boiler and engine house.

"'$ 1,000 on grain, flour, meal, stock in process, offal, cooperage, and bags while in said building.

"'$ 3,500 total insurance permitted, concurrent herewith, on buildings, boiler, engines and machinery. Other insurance permitted concurrent herewith on stock.

"'This entire policy, unless otherwise provided by agreement, indorsed hereon or added hereto, shall be void, if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid, or not, on property covered in whole or in part by this policy.

"'It is hereby further agreed, that such loss or damage as shall have been ascertained and proven to be due under this policy to C. M. Senor shall be held payable for his account unto P. Muntz, post office address, Kansas City, Mo., as his interest may appear.

"'This slip is attached to and forms part of Policy No. 1705, of The Western Millers' Mutual Fire Insurance Company, of Kansas City, Mo.

"'June 28, 1899.

"'Rob't Atkinson, Secretary.

"'It is hereby further agreed that such loss or damage as shall have been ascertained and proven to be due under this policy to C. M. Senor shall be held payable for his account unto Bank of Conway Springs (Hooper, Douglad and Lutz, owners), post office address, Conway Springs, Kan., as its interest may appear.

"'This slip is attached to and forms part of Policy No. 1705 of the Western Millers' Mutual Fire Insurance Company, of Kansas City, Mo.

"'July 1, 1899.

"'Rob't Atkinson, Secretary.'"

This cause was submitted to the court upon an agreed statement of facts. As there are only three controverted questions involved in this cause, it is unnecessary to burden this opinion by the insertion of the entire facts agreed upon; hence, we deem it sufficient to add only such portions of the agreed statement as are applicable and material to the intelligent discussion of the propositions presented. It is disclosed, by the agreed statement of facts upon which this cause was tried, that plaintiff, Senor, did obtain a second policy of insurance from the "Commercial Union Assurance Company," for $ 2,000, five hundred of which was applicable to plaintiff Senor's frame flour mill building, including boiler house, being some of the same property covered by defendant's policy of insurance in suit. It also appears, from the agreed statement, that plaintiff, Phillip Muntz, had no notice or knowledge of the application for and issuance of the policy by the Commercial Union Assurance Company.

The policy of insurance upon which this suit is predicated and which is made a part of the agreed statement of facts, contained this provision: "If, with the consent of this company, an interest under this policy shall exist in favor of a mortgagee or of any person or corporation having an interest in the subject of insurance other than the interest of the insured described herein, the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached or appended hereto."

The following provision is also contained in the agreed statement of facts: "It is further agreed that after the issuance of said policy and the delivery thereof to the plaintiff Senor, the said policy or any loss thereunder was made payable to Phillip Muntz, as his interest may appear, and that for that reason he is joined as a coplaintiff. It is further agreed that the interest of said Muntz at the date of the loss by fire of said property was three thousand dollars. It is further agreed that Senor was the owner of the property at the time of the loss which is described in the proof of loss, subject to the interest of Phillip Muntz."

This is a sufficient recitation of the facts to indicate the theories upon which the conflicting contentions of counsel for appellant and respondent are based.

Upon the submission of the cause to the court, its finding was for the plaintiffs for the full amount of the policy, together with interest, and judgment was accordingly entered for the sum of $ 4,815.

From this judgment, defendant, in due form, prosecuted his appeal to this court, and this cause is now before us for review.

OPINION.

The...