Shook v. Retail Hardware Mut. Fire Ins. Co.

• Citation: 134 S.W. 589,154 Mo. App. 394
• Parties: SHOOK et al. v. RETAIL HARDWARE MUT. FIRE INS. CO. OF MINNESOTA.
• Decision Date: 06 February 1911
• Court: Missouri Court of Appeals

134 S.W. 589

154 Mo. A. 394

SHOOK et al. v. RETAIL HARDWARE MUT. FIRE INS. CO. OF MINNESOTA.

Springfield Court of Appeals. Missouri.

February 6, 1911.

Motion to Certify to Supreme Court Denied February 20, 1911.

1. INSURANCE (§ 668)—FIRE INSURANCE—ACTIONS—JURY QUESTIONS—WAIVER.

In an action on a fire policy, held a jury question whether defendant's soliciting agent waived the iron-safe clause in the policy.

2. INSURANCE (§ 90) — AGENTS—LIMITATION OF AUTHORITY.

Limitations upon the authority of an insurance agent do not bind insured if he has no notice thereof, so that limitations in the policy are not notice to insured of the agent's want of power before the delivery of the policy.

3. INSURANCE (§ 87)—AGENTS—AUTHORITY.

The authority of an insurance agent is prima facie coextensive with the requirements of the business intrusted to him, and the company is bound by his acts within the apparent scope of his authority.

4. INSURANCE (§§ 77, 375) — AGENTS — AUTHORITY.

A fire insurance company, by issuing a policy upon an application taken by one purporting to act as its agent, and accepting the premiums, is estopped from denying the agency, and became bound by the agent's misrepresentations when acting within the scope of his apparent authority, so that it was bound by a parol contract made by the agent with insured when the policy was issued, by which the iron-safe clause was eliminated from the policy.

5. INSURANCE (§ 142) — FIRE INSURANCE—AGENTS—RATIFICATION OF UNAUTHORIZED ACTS—RATIFICATION IN TOTO.

An insurance company could not accept the part of an unauthorized contract made by an agent which was favorable to it and reject the rest, but must ratify it as a whole.

6. EVIDENCE (§ 441) — PAROL EVIDENCE— VARYING CONTRACTS—INSURANCE POLICY.

Parol evidence is admissible in an action on an insurance policy to show that facts relied on by the company to establish a forfeiture arose from fraud or mistake of the agent in preparing the application or policy, so that, in an action on a fire policy, evidence was admissible as to conversations between insured and defendant's agent tending to show an agreement before the issuance of the policy that the inventory and iron-safe clauses therein should not bind insured.

7. INSURANCE (§ 376)—FIRE INSURANCE—AUTHORITY OF AGENT.

Insurance agents vested with the authority to insure property may waive stipulations in the policy purporting to be essential to the validity of the contract, though the policy provides a particular method by which its provisions may be waived or designates particular persons as having the sole power to waive the provisions thereof.

8. APPEAL AND ERROR (§ 1001)—FINDINGS—CONCLUSIVENESS.

A verdict for plaintiff is binding on appeal where there was evidence to support plaintiff's contention.

9. INSURANCE (§ 576)—FIRE INSURANCE—APPRAISAL—WAIVER.

Failure to appraise the goods after loss is only available as a defense where the parties disagree as to the amount of the loss, and the

company waives an appraisement if it wholly denies liability or refuses to pay on grounds inconsistent with the purpose to insist on an appraisement.

10. INSURANCE (§ 576) — FIRE INSURANCE — APPRAISEMENT—WAIVER.

Where insured and the company did not disagree as to the amount of insured's loss after the fire, but the company offered to pay on the same basis as other insurance companies who had settled at less than the face value of their policies, the company waived the provision of the policy requiring an appraisement; the offer being an admission of the amount of insured's loss.

11. TRIAL (§ 252)—INSTRUCTIONS—APPLICABILITY TO EVIDENCE.

Where there was no evidence, in an action on a fire policy, tending to show waiver of certain conditions thereof after the loss, it was error to submit that issue to the jury.

12. APPEAL AND ERROR (§ 1062)—HARMLESS ERROR—SUBMITTING FALSE ISSUE.

Where the insurance agent taking the policy waived certain provisions thereof by parol before the policy was issued, so that the question of waiver after loss was immaterial, error in submitting the issue of waiver after loss, of which there was no evidence, was harmless to the company.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by W. E. Shook and another, copartners doing business as Shook & Farmer, against the Retail Hardware Mutual Fire Insurance Company of Minnesota. From a judgment for plaintiffs, defendant appeals. Affirmed.

Fyke & Snider and Mann, Johnson & Todd, for appellant. Hamlin & Seawell, for respondents.

NIXON, P. J.

This action is based on a policy of fire insurance issued to plaintiffs, insuring their fixtures and stock of general merchandise in the town of Willard in Greene county for $2,600. In the trial the plaintiffs obtained a verdict for $2,600, and defendant perfected its appeal to this court. The policy contained the following provision: "It is a condition of this policy, if at the time of loss the assured shall hold any policy of this or any other company, on the property hereby insured, subject to conditions of coinsurance, percentage of value, or average, or inventory and iron-safe clause, this company's liability herein shall be limited thereby to the same extent as though such clause were contained in this policy." The evidence showed that plaintiffs did have coinsurance in five other companies, amounting to $4,650, and that in the policy issued to plaintiffs by the Ætna Insurance Company—one of the five—was contained the following provision: "Books and Inventory to be Kept or Insurance Void.—It is a part of the consideration for this insurance, and it is expressly warranted, that the assured above named shall take an inventory of the stock above described at least once a year, and shall also keep correct books of account in detail showing all purchases and sales of the same, and shall keep all inventories and books in a fire-proof safe, or other place secure from fire in said store during the hours said store is closed for business, or this policy shall be void."

The evidence showed that one of the plaintiffs met the man who represented himself to be the agent of the defendant at a meeting of retail hardware merchants in Springfield, Mo., and that a few days thereafter this agent called on plaintiffs, who were partners in the general merchandise business at Willard, and sought to sell them a policy in his company. He arrived about 9 o'clock in the morning and remained all day. Mr. Shook testified: "Q. State the conversation of the agent with reference to the question of complying with the iron-safe clause, and also whether or not he had any knowledge of the other policies, and whether or not you were complying with the provisions of the other policies with reference to the iron-safe clause? A. He asked me if we had other insurance and how much. I told him, and he asked to see the policies, and I told him we had no safe, that we kept our books in the desk, but we had our policies over at the bank, and I would get the policies. I got them and gave them to him, and he went over them. We were waiting on the trade. When I told him we had no safe he said, `That is all right; our company is not technical like those Eastern companies.' He had been telling me about their company, some of the good things about them, and said, `Our company doesn't deal in technicalities like these Eastern companies.' He said, `We had a loss at some town where other companies were represented, and I happened to be there the same day.' He said he was sent there to adjust the loss `and the other companies went through a lot of "red tape," and had the insured to get a lot of duplicate invoices,' which took him weeks to produce, `and they went to every other business man in town and asked them what they thought about the situation, but I waited until they got through, and I took the man off to one side and talked to him and settled the loss and went on.' Q. Did he look over your stock? A. Yes, sir. Q. Did he ask you about what you had—the amount? A. He did, and went on to say we needed more insurance. I told him our stock would invoice $10,000; that we knew nothing about the mutual insurance business, and he talked there for some time, spent the whole day looking through the stock, and stated that $2,600 more wouldn't be extravagant insurance, and we told him we didn't want to pay insurance on more than we would be able to collect if we had a loss." The evidence shows that plaintiffs finally agreed to take a policy for $2,600, and executed one of the applications the agent carried in his grip (the terms of which do not appear) and gave a check for $48 for the premium and delivered same to the agent. To whom this check was payable does not appear, and plaintiffs did not remember, but they said the agent told them how to make it. In a few days the policy was received through the mail and placed in the bank with the other policies. Plaintiffs did not know whether the agent signed the policy or not, and there is nothing in the abstract to enlighten the court on this question; nor does it appear who mailed the policy or from whence it came. As to the negotiations for the insurance, Mr. Farmer testified: "Q. What was said about the safe and where you kept the policies? A. Shook says, `We haven't any safe, and the policies are kept in the bank across the street.' He said, `All right,' and then went ahead and told us a story about not being particular in making these settlements. We showed him where we had the books in the desk. Q. Did you make any inventory at all of the stock? Did you have an inventory? A. Yes, sir; it was taken in January, 1909; that was an inventory of the entire stock. Q. Did you keep books of account? A. Yes, sir; showing our purchases and indebtedness and credits and everything of that kind. Those books and inventory and everything were destroyed the night of the fire."

J. E. Leonard, a witness for the plaintiffs, testified that h...