Shutts v. Milwaukee Mechanics Ins. Company

• Decision Date: 20 November 1911
• Citation: 141 S.W. 15,159 Mo.App. 436
• Parties: J. W. SHUTTS, Respondent, v. MILWAUKEE MECHANICS INSURANCE COMPANY, Appellant
• Court: Kansas Court of Appeals

141 S.W. 15

159 Mo.App. 436

J. W. SHUTTS, Respondent, v. MILWAUKEE MECHANICS INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

November 20, 1911

Appeal from Sullivan Circuit Court.--Hon. Fred Lamb, Judge.

AFFIRMED.

Judgment affirmed.

Fyke & Snider and W. H. Childers for appellant.

(1) Upon removal of the property from the place where insured the policy at once became null; once void it so remained. There is no evidence of an agreement to revive, nor is any consideration for a revival shown. Imperial Ins. Co. v Coos County, 151 U.S. 463; Kyte v. Assurance Co., 149 Mass. 116; Hoover v. Insurance Co., 93 Mo.App. 111. (2) At the time plaintiff claims he notified Mr Reeves the property had been removed to a new location Reeves was employed by plaintiff, and as Mr. Reeves could not simultaneously represent plaintiff and defendant without defendant's knowledge and consent, the notice then given, if any, was not notice to defendant, nor binding upon it. DeSteiger v. Hollington, 17 Mo.App. 382; Winter v. Corey, 127 Mo.App. 601.

Earl F. Nelson for respondent.

OPINION

JOHNSON, J.

Action on a policy of fire insurance issued by defendant on the household goods of plaintiff in his residence in the city of Milan. Plaintiff obtained the policy from C. W. Reeves, the local agent of defendant at Milan, and by the terms of the instrument, defendant, in consideration of a premium of $ 2.50, paid by plaintiff, undertook to insure the property for a term of three years in an amount not exceeding the sum of $ 250. The location of the property was stated in the policy and the agreement was clearly expressed that the insurance should be in force only while the property should be "contained in or attached to the above named dwelling house." Further the policy provided that "no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provision or condition unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist, or be claimed by the insured, unless so written or attached."

The property insured was destroyed by fire during the term covered by the policy but not until after plaintiff had removed it to a new country home in the vicinity of Milan. The petition contains the allegation that the removal was "with notice to, knowledge of and consent of defendant." The answer is a general denial.

It appears from the evidence of plaintiff that he first gave notice to defendant's agent Reeves, of the removal of the insured property some two months or more after the occurrence of that event. He sold his house in Milan and went to Reeves to have him prepare the deed and at the same time he took with him the policy in controversy and handed it to Reeves, with the statement that he was living in the country and desired to have a proper transfer of the insurance made. Reeves--so plaintiff testified--took the policy, looked at it and then returned it to plaintiff, remarking that "the policy is all right." The incident occurred in May, 1910, and the fire did not occur until the following October. Reeves, whom the evidence discloses was the alter ego of defendant at Milan and who, as such, issued the policy, was introduced as a witness by defendant and testified that no such conversation as that related by plaintiff occurred. Defendant did not cancel the policy nor offer to return the unearned premium.

The court overruled defendant's request for a peremptory instruction and submitted the issue to the jury of whether or not defendant was notified of the change in the location of the property. The jury found for plaintiff and after unsuccessfully moving for a new trial and in arrest of judgment, defendant appealed.

Three points are urged by counsel for defendant, namely, first, that the petition fails to state a cause of action because of its failure to allege that defendant "agreed to insure or cover the property after removal at the place to which it was removed;" second, that "upon removal of the property from the place where insured the policy at once became null; once void it so remained. There is no evidence of an agreement to revive, nor is any consideration for a revival shown," citing Imperial Insurance Co. v. Coos County, 151 U.S. 452, 38 L.Ed. 231, 14 S.Ct. 379; Kyte v. Assurance Co., 149 Mass. 116, 21 N.E. 361; Hoover v. Ins. Co., 93 Mo.App. 111, 69 S.W. 42; third, that "at the time plaintiff claims he notified Mr. Reeves the property had been removed to a new location Reeves was employed by plaintiff and as Mr. Reeves could not simultaneously represent plaintiff and defendant without defendant's knowledge and consent, the notice then given, if any, was not notice to defendant nor binding upon it."

We shall dispose of this last proposition in few words. As to the insurance on plaintiff's household goods, Reeves was not the agent of plaintiff but was the agent and, as we have said, the alter ego of defendant at Milan, and the mere fact that Reeves was employed by plaintiff to act for him in an entirely different matter and in a different capacity, affords no ground for even a suspicion that such employment also included the transfer of the insurance. Frequently in small cities and towns lawyers and conveyancers are also insurance agents and it would be a strange doctrine that would destroy the relation subsisting...