Shelby v. Connecticut Fire Ins. Co. of Hartford

• Decision Date: 26 May 1924
• Docket Number: No. 14872.,14872.
• Citation: 218 Mo. App. 84,262 S.W. 686
• Parties: SHELBY v. CONNECTICUT FIRE INS. CD. OF HARTFORD.
• Court: Missouri Court of Appeals

262 S.W. 686

218 Mo. App. 84

SHELBY v. CONNECTICUT FIRE INS. CD. OF HARTFORD.

No. 14872.

Kansas City Court of Appeals, Missouri.

May 26, 1924.

Appeal from Circuit Court, Lafayette County; Robert M. Reynolds, Judge.

Action by Mattie Shelby individually and as executrix of the estate of D. V. Henson, deceased, against the Connecticut Fire Insurance Company of Hartford. Judgment for plaintiffs, and defendant appeals. Affirmed.

Lamm & Lamm, of Sedalia, and Horace F. Blackwell, of Lexington, for appellant. Hackney & Welch, of Kansas City, for respondents.

THIMBLE, P. J.

The cause of action herein is upon an alleged oral contract of insurance for $3,000 covering household goods and effects of Mattie Shelby and her father, D. V. Henson, located in an apartment house at 3120 Charlotte street, Kansas City, Mo. The contract is claimed to have been entered into between November 1st (or a date near that) and December 26, 1919, by Mattie Shelby (acting for herself and her father) and Pollman, defendant's agent at La Cygne, Kan. A verdict was returned in plaintiffs' favor, and, upon judgment being rendered thereon, defendant appealed.

The property was destroyed by fire on February 29, 1920. Ten days before that the father died testate, and Mrs. Shelby, his only heir, was appointed his executrix. No contention is raised over the fact of the fire, the ownership of the property, or the amount of loss sustained. Nor is there any question over the sufficiency of proofs, as the company denied liability. The defense is there was no contract of insurance, and that, even if Mrs. Shelby and the agent, Pollman, had the agreement claimed, it was void and of no effect under the law, and, furthermore, that it could not bind the company because of Pollman's lack of authority.

There is no question but that from February —, 1894, down to the date of the fire, Pollman, residing at La Cygne, Kan., was defendant's agent "to countersign, issue, renew and consent to the transfer of policies of insurance." But defendant's contention is that Rich agency was only in La Cygne and vicinity, and that Pollman's authority did not extend to the making of contracts of insurance in Missouri, and that, in view of section 6315, R. S. 1919, contracts of insurance can be made in this state only by resident Missouri agents.

Pollman was president of a bank in La Cygne, which is a town some 45 or 50 miles south of Kansas City, and located in Kansas a short distance west of the Missouri line. He was generally known in that community to be defendant's agent, and had the defendant's agency sign up in his office. For two years or more prior to November, 1919, Mrs. Shelby lived with her father on a farm a few miles out from La Cygne, and she, at that time, had known Pollman for two or three years. She and her father knew he was defendant's agent with power to countersign and issue policies, and he had on former occasions written policies of insurance for her. While on said farm D. V. Henson, the father, had, on March 9, 1918, obtained from defendant, through another agent, Gruver, operating in that territory, an insurance policy in the sum of $2,175 covering household furniture, grain, and stock. This policy was for a term of three years, running from March 9, 1918, to March 9, 1921. At some unshown date thereafter Mrs. Shelby, desiring to insure her automobile, paid said agent Gruver the premium therefor, but was unable thereafter to get a policy from him or to secure the return of her money. After consulting Pollman, defendant's recognized agent, she, at his suggestion, wrote defendant about it, and in this letter she told defendant she still wanted to do business with the company, but not through its agent, Craver. In reply defendant wrote her, acknowledging receipt of that or some other premium money, and said, among other things:

"When in need of additional insurance or you desire any change in your policy, communicate with the agent of the `Old Connecticut' for prompt and satisfactory service,' etc.

Mrs. Shelby understood this to mean that thereafter she should not bother the home office with such matters, but should take them up through their agent Pollman.

Shortly before November 1, 1919, Mrs. Shelby went to Pollman in the bank at La Cygne and told him they were selling out, and were going to move to Kansas City, where they were intending to buy a rooming house or hotel, in order that she might have a way to provide for her father, as his health was failing. She wanted to know of him what to do about the insurance. The premium was fully paid on the existing policy, and he told her she could have it transferred to Kansas City. She told him the policy was also on grain, and livestock, but he told her: "That doesn't matter; you can have that transferred to household effects." As she told him she was expecting to buy a hotel or rooming house, he told her, "Well, you will want more insurance;" and she replied that they wanted to increase the insurance, as they expected to buy a large place. He and she then tentatively agreed on $3,000 as the amount they likely would want. He told her to wait, however, until she got up to Kansas City and knew what her location would be, and the amount of furniture she would add to what they already had, and how much additional insurance she would want, and he would then have the insurance raised. He asked her if i she was going to be on the Kansas side or Missouri side, and she told him they would be on the Missouri side. She asked him if he could transfer the insurance to Kansas City, and he replied, "Why, sure."

It is apparent from Mrs. Shelby's testimony that she did not know whether Pollman would write the new insurance and cancel the old policy or merely transfer the old policy with the additional insurance added thereon. She thought he would issue the policy and would send in the old policy so that the unexpired premium on it could be treated as cash and applied on the premium on the new policy. Pollman, she says, did not tell her he would have to send the old policy in to headquarters in order to have the insurance issued.

It was agreed in this conversation that the insurance on the Kansas City property should exist for the same length of time that the old policy had to run. Pollman told her that after canceling the insurance under the old policy on the stock and grain there would not be enough unearned premium to provide for insurance on the Kansas City property; but, as she had something over $1,500 on deposit in the bank, it was agreed that he should check out of said account the amount necessary to pay for whatever additional premium was needed. Pollman instructed her to write him when she got located so he would know what address to write the insurance for, and it was fully understood and agreed between both of them that the property to be insured was hers and her father's, and that the insurance was for both of them.

Mrs. Shelby agreed to get the old policy and bring it in, but owing to muddy roads she was not able to do so, and on the day before she and her father moved to Kansas City she called Pollman over the telephone, and he told her to "mail me the policy after you get to Kansas City and it will be all right." He asked her if she had decided on how much insurance she wanted, and she told him $3,000.

After Mrs. Shelby and her father came to Kansas City they acquired a lease (which they had verbally contracted for before coming to Kansas City) on property at 3120 Charlotte street, and additional furniture was obtained with which to furnish it. On December 4 or 5, 1919, Mrs. Shelby telephoned Pollman that they had acquired the lease and were moving into the property at 3120 Charlotte street, and requested him to make the policy for $3,000 on household goods and effects. Pollman agreed to do so and said: "That is all right; your insurance will take effect at this hour." Mrs. Shelby, pursuant to the arrangement whereby she was to send him the old policy, sent it by registered mail, accompanied with a letter which will be hereinafter referred to.

It seems that about December 26, 1919, Mrs. Shelby, having read in the papers of some trouble Pollman was in, went to La Cygne and had a conversation with him in the bank, in the presence of the cashier, Kennedy, and another person by the name of Watts. Mrs. Shelby says that in that conversation Pollman told her she was insured, and not to let it worry her; that the policy was either on the road to her or was in the bank somewhere; that he had been busy and had not slept any for several weeks, he having been charged with forgery, and he had not carefully looked after his own affairs, but would look for the policy just as soon as he could; he was sure the policy was in the bank; and he again assured her he had taken care of it for her, and not to let it worry bee any more. Thinking he had mislaid it in the bank, and not knowing that he had not issued the policy, she was lulled into a feeling of security.

On February 19, 1920, her father died, and on the night of the 29th of that month the fire occurred. The next morning Mrs. Shelby telephoned Pollman, notifying him of the fire, and asking him to mail the policy to her. He said, "I thought you had gotten that quite a while ago," and told her that he was then out at his farm, but would go into town immediately and get the policy at the bank and mail it to her, and that she should "take steps to protect" her property at once. He did not send the policy, however, and, being unable to obtain it or secure any further answer from Pollman, Mrs. Shelby, on April 3, 1920, went to La Cygne, in company with an insurance adjuster whom she had employed to assist her, and there learned for the first time that Pollman did not have a written policy and had not issued any. While she was in the bank and search was being made for the policy Pollman was supposed to have issued the cashier brought to Pollman an unopened...