Sheets v. Iowa State Ins. Co.

• Decision Date: 13 February 1911
• Citation: 135 S.W. 80,153 Mo. App. 620
• Parties: SHEETS et al. v. IOWA STATE INS. CO.
• Court: Missouri Court of Appeals

135 S.W. 80

153 Mo. A. 620

SHEETS et al. v. IOWA STATE INS. CO.

Kansas City Court of Appeals. Missouri.

February 13, 1911.

1. APPEAL AND ERROR (§ 215)—OBJECTIONS BELOW—NECESSITY—INSTRUCTIONS.

Where defendant failed to object to instructions given, assignments of error based thereon are not reviewable.

2. APPEAL AND ERROR (§ 927)—REVIEW—FINDINGS OF FACT—DEMURRER TO EVIDENCE.

When considering a demurrer to the evidence, the appellate court must consider the evidence in the light most favorable to the party not demurring.

3. INSURANCE (§ 207)—POWER OF AGENT—ASSIGNMENT OF POLICY.

Where an insurance policy contemplated a possible sale of the property insured and provided for an assignment of the policy, the provisions that it should be void if the property were assigned or transferred without the consent of the company, and that only the secretary had authority to waive any of its terms and conditions, did not amount to a limitation on the authority of local agents with the power to make contracts of insurance, to make indorsements, and consent to assignments of the policy.

4. INSURANCE (§ 24)—ASSIGNMENT OF POLICY—POWER OF AGENT—STATUTE.

Because of a statute which provides that foreign companies permitted to do business in this state shall make contracts of insurance only by lawfully constituted, resident agents, who shall countersign all policies so issued, one relying on the assignment of an insurance policy made by a mere soliciting agent, who countersigned it, can recover from a foreign insurance company, as it will be estopped from claiming that it violated the statute by doing business through an agent without authority to countersign the policy.

5. INSURANCE (§ 336)—FORFEITURE OF POLICY—ADDITIONAL INSURANCE.

Where an insurance policy provided that, since a statute provided that no insurance company should take risk on any property for more than three-fourths its value, the total insurance on the described property should be limited to that, and in case of other insurance the company should be liable proportionately, that provision impliedly granted permission for additional insurance up to three-fourths of the value of the property, whether in that company or not, and hence nullified the effect of a provision that additional insurance, without the insurer's consent, shall avoid the policy.

6. INSURANCE (§ 328)—FORFEITURE OF POLICY—ALIENATION OF PROPERTY.

Where an insurance policy on a stock of goods provided that it should be void in case of alienation of the property, a sale in bulk of goods worth $400 out of a stock valued at $9,000 will not forfeit the policy, for it is presumed that it contemplated a continuous sale from and replenishment of the stock.

Appeal from Circuit Court, Grundy County; Geo. W. Wanamaker, Judge.

Action by Robert G. Sheets and another against the Iowa State Insurance Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Hall & Hall, Jas. C. Davis, and Hughes & Sawyer, for appellant. A. G. Knight, E. R. Sheetz, and E. M. Harber, for respondents.

JOHNSON, J.

This is an action on a policy of fire insurance. The trial resulted in a judgment for plaintiffs for the full amount of the policy, with interest and costs, and an appeal to this court was allowed defendant. We transferred the cause to the Supreme Court on the ground that a constitutional question was in the case, but that court held that the question "was not timely raised below and for that reason cannot be properly considered on appeal," and sent the case back. Sheets v. Insurance Co., 226 Mo. 613, 126 S. W. 413.

Counsel for defendant have 16 specifications of error in their brief, 13 of which refer to instructions given by the court at the request of plaintiffs. One of these instructions, numbered 3, was attacked in the motion for a new trial on the ground that the statute on which it was based (section 7995, Rev. St. 1899 [page 3801, Ann. St. 1906]) is unconstitutional. That was the constitutional question which prompted us to transfer the cause to the Supreme Court and which that court held was not raised in proper time, since it first appeared in the motion for a new trial. The rule was iterated in the opinion that "in so grave a matter as a constitutional question it should be lodged in the case at the earliest moment that good pleading and orderly procedure will admit, under the circumstances of the given case, otherwise it will be waived"; and it was held that defendant should have raised the question at the time the instruction founded on the statute was offered. The fact is noted that the record fails to show any objection to the instruction, and the rule is pronounced "that before one can legally except to the action of the court in giving or refusing instructions, he must first request the court to give same or object thereto, as the case may be, before his exceptions will be availing."

In Welch v. Coal Co., 132 S. W. 49, we held this rule applicable to all given instructions and rejected the view that it was intended to apply only to instructions involving constitutional questions. Such, also, is the conclusion of the St. Louis Court of Appeals. Stevens v. Maccabees, 132 S. W. 757. We perceive no reason for changing our opinion, and, since the record before us does not show that defendant objected to any of the instructions given at the request of plaintiff, we hold that the assignments of error relating to such instructions are not before us and shall confine our attention to the remaining assignments discussed in the briefs. Two of them are based on the refusal of the court to give the jury a peremptory instruction to find for defendant, and the other relates to rulings on evidence.

The material facts of the case thus may be stated: Defendant is a foreign insurance company and has its chief office in Keokuk, Iowa. It is licensed to do business in this state and maintains an agency at Cainsville, Mo. In September, 1904, it issued a policy for $2,000 to Adams & Son of Cainsville, on a stock of merchandise owned by that firm. The agent of defendant at Cainsville, J. W. Henderson, attended to the business of taking the application for the insurance, forwarding it to the head office, delivering the policy to the assured, collecting the premium and remitting it to the head office. He also countersigned the policy and in doing all these things followed the usual course of business he had pursued for a number of years, with the consent of defendant. Among the stipulations of the policy were the following: "No officer, agent or employé of this company shall have power or authority to waive any of the terms or conditions of this policy, either before or after loss, except only the secretary of this company, and any waiver by him must be in writing signed by him and indorsed upon, or attached to the policy. This entire policy shall be void, unless otherwise provided by written agreement, endorsed hereon or added hereto, in any of the following cases, to wit: If at the time of loss the title or interest of the assured, in the property described in this policy, or any part thereof be less than an unqualified ownership, free and clear of all liens, equities or incumbrances. * * * If any other insurance whether valid or not exists or is placed on the property insured, or any part thereof. * * * In case there shall be any other policies or contracts of insurance on the property herein insured, with the consent of this company, as herein provided (the insured) shall recover of this company only such proportion of the loss upon any item as the sum hereby insured thereon shall bear to the whole amount of insurance thereon, whether specific or blanketed with other items, and if any such policies contain any limitations or exemptions such limitations or exemptions shall limit the proportion of the liability of this company. * * * All papers or riders attached to this policy bearing same number, and signed by the secretary of the company shall be and form a part of this policy." On the back of the policy was the form of an assignment for use in case of the sale of the property and at the bottom of the form were the words: "The company hereby consents to the above assignment, subject to all the terms and conditions of the policy, and the questions and answers in the application."

Attached to the policy was the following "rider": "The Legislature of the state of Missouri having by enactment provided that no company shall take a risk on any property in said state at a ratio greater than three-fourths of the value of the property insured, it is a condition of this policy that the total insurance on the described property shall be limited to three-fourths of the cash value of such property or any item thereof, and that this company shall not be liable in case of loss or damage by fire for an amount greater than three-fourths of the actual cash value of each item of property insured by this policy (not exceeding the amount insured on each such item) at the time immediately preceding the fire, nor for more than this company's proportion of three-fourths of such cash value of each item insured, in case of other insurance thereon; and if the amount of this policy on any item therein, together with all other insurance thereon (if any other insurance is permitted in writing on the policy) exceeds three-fourths of the cash value of such property or any item thereof, it shall thereby become void to the extent of such excess; and if by reason of this clause the liability of this company shall be less than the amount of insurance thereon for which premium has been paid, this company will on demand, refund to the assured for the full term of the policy the premium received by it on the difference between the amount insured and the amount paid for total loss on such property."

Before applying for this policy Adams & Son had procured another policy of $2,000 from another insurance agent in Cainsville a Mr....