Sims v. State Ins. Co. of Hannibal

• Decision Date: 31 October 1870
• Citation: 47 Mo. 54
• Parties: THOMAS B. SIMS, Respondent, v. STATE INSURANCE COMPANY OF HANNIBAL, Mo., Appellant.
• Court: Missouri Supreme Court

47 Mo. 54

THOMAS B. SIMS, Respondent,

v.STATE INSURANCE COMPANY OF HANNIBAL, Mo., Appellant.

Supreme Court of Missouri.

October Term, 1870.

Appeal from Sixth District Court.

Asper & Pollard, A. W. Lamb, and Lakeman & Brown, for appellant.

I. A certificate of loss sworn to by the insured himself is a condition precedent, and must be complied with before a recovery can be had on the policy. (Mann v. Harvey, 8 Exch. 819; Norton v. The R. & S. M. Co., 8 Cow. 645; Ang. Ins., § 226; Noonan v. Hartford Ins. Co., 21 Mo. 81; 2 Pet. 25; 10 Pet. 507; Wallingford v. Home Mut. Ins. Co., 30 Mo. 46; 3 Kent's Com. 376, and authorities cited; Leadbetter v. Ins. Co., 13 Me. 265; Ang. Ins., §§ 225, 227; Ætna Ins. Co. v. Tyler, 16 Wend. 385; Chouquette v. Barada, 28 Mo. 491; Farrar v. David, 33 Mo. 482.)

II. It is the province of the jury to find a waiver from the facts. But our courts have not carried the doctrine of waiver as far as did the Supreme Court of the United States and in the State of New York. (See St. Louis Ins. Co. v. Kyle, 11 Mo. 291; Phillips v. Protective Ins. Co., 14 Mo. 220; Noonan v. Hartford Ins. Co., supra; Newmarks v. London Ins. Co., 30 Mo. 160; O'Neil v. Buffalo Ins. Co., 2 Comst. 122; Roumage v. Ins. Co., 1 Green, N. J., 110.)

III. A waiver of defects is not in law a waiver of substance. It is no proof at all if not made by the assured. The only man to make the proofs was the owner of the goods. He knew what interest he had in them, and was the only one who did. He agreed to give this proof, and the insurers had a right to have this; and until such a proof was filed, signed and sworn to by the insured, there was nothing to waive. (St. Louis Ins. Co. v. Kyle, supra; Ellis on Ins. 14; 3 Kent's Com. 376, and authorities cited; Dawes v. N. R. Ins. Co., 7 Cow. 462; Bumstead v. Dividend Mut. Ins. Co., 12 N. Y. 81; Roumage v. Ins. Co., supra.)

IV. The court erred as to the admission of the testimony to prove that making hogsheads in the building was an incident to the business of tobacco-pressing, and erred in refusing to permit testimony showing increase of risk caused by making hogsheads in the building. There could have been no general custom known to the insured that such work was incident to the business. (Ang. Ins., §§ 20-3; Brown v. Cattaraugus Ins. Co., 18 N. Y. 385.)

V. The representation as to occupancy was a warranty, and false, and therefore avoided the policy. The defense was fully made out, and the jury must have found for the defendant but for the charge of the court and the refusal to put the case to the jury as asked for by the defendants. (Ang. Ins., § 147, and note 2; id., §§ 159-62; id., § 169, note 3; Leohner v. Home Ins. Co., 17 Mo. 255; Jennings v. Chenango Ins. Co., 2 Denio, 75; Deitz v. St. Louis Mut. Ins. Co., 38 Mo. 85; Hutchinson v. The Western Ins. Co., 21 Mo. 97; Woolmer v. Minlman, 3 Burr. 1419; Tesson v. Atlantic Ins. Co., 40 Mo. 33; Keen v. S. St. Louis Ins. Co., 40 Mo. 19; Chase v. Hamilton Ins. Co., 20 N. Y. 385; 3 Abb. Dig. 416; Wood v. Hartford Ins. Co., 13 Conn. 523.) The instructions given on this point did not put the case to the jury fairly. Under them the jury had no opportunity to investigate whether, under the testimony, there was such manufacturing, or any manufacturing, of hogsheads or anything else in the building, which would avoid the policy.

G. W. Shields, Green & Porter, and Wilson, for respondent.

I. The objection by defendant to the admissibility of the proof of loss itself was properly overruled: 1. Because the policy, in its condition, and the by-laws of the company, article 8, both recognize the validity of an agent's act in procuring insurance, etc. 2. If such construction was admitted, no person could insure any property over which he had not personal supervision, and with the destruction of which he was not thoroughly acquainted in all its details, which proposition would prevent any business being carried on by an agent. 3. If it should be the opinion of the court that the paper itself was defective, it was still admissible to show a compliance with the policy, as the defendants waived the defect by their conduct in receiving the same and not returning it to the assured and pointing out its defect; and further, by putting their refusal to pay on other grounds than such defect in said proofs, they waived the right to insist on such defect in bar of recovery. (Ayres v. Hartford Ins. Co., 17 Iowa, 176, 196; Bonner v. Home Ins. Co., 13 Wis. 686; Newmarks v. Liverpool, etc., 30 Mo. 160-4; Phillips v. Protective Ins. Co., 14 Mo. 220-35; Warner v. Peoria M. & F. Ins. Co., 14 Wis. 323; 25 Wend. 382; 26 Ill. 365; 3 Comst. 128; 25 Ill. 470; 43 Barb. 351; Hosmer v. Protective Ins. Co., 2 Ohio St. 452-76.) And this may be proved under an averment of performance of the condition. (11 Mo. 278; 44 Penn. St. 259.) 4. Objection was made by plaintiff's counsel to the answering by experts (insurance agents) of this question: “If tobacco hogsheads were manufactured or set up in the building, what would be the increase of risk?” and to the defendant's showing, by experts, that the manufacturing and setting up of hogsheads, as described in the testimony of John F. Colvert, created an increase of the risk on the property insured. The court properly sustained the objection to the introduction of such testimony. (Newmarks v. Liverpool, etc., 30 Mo. 165; Protective Ins. Co. v. Hosmer, 2 Ohio St. 452; 45 Me. 168-171; 7 Wend. 72.) 5. Objection was made by the defendant's counsel to the question: “State whether, from your knowledge and observation, the setting up of tobacco hogsheads in the building where the tobacco is pressed, is an incident to the business?” The court properly overruled the objection, because, first, the contract of insurance covered the whole subject-matter of the business of tobacco-pressing if it covered that business at all, and it was material to know whether or not it was an incident to the business; second, it was not intended to control the contract by inconsistent parol testimony, but to show that it embraced the hazards of this and other incidents to the business; third, that the issue raised in the pleadings was whether or not the business of setting up tobacco hogsheads was a separate, distinct, and more hazardous business than tobacco-pressing, or whether it was included within the scope of that business. The question whether or not such business was incident to the business of tobacco-pressing, was a question for the jury, and could only be ascertained by witnesses acquainted with the business. (Archer v. Merchants' and Manufacturers' Ins. Co., 43 Mo. 434; 6 Wend. 623-7; 20 N. H. 551; 17 N. Y. 194, 200; 26 Iowa, 9, 66; 2 Hall, N. Y., 490-2; Delonguemare v. Tradesmen's Ins. Co., id. 589, 616, 620, 624; 13 Gray, 139; Peoria Mar. & F. Ins. Co. v. Lewis, 18 Ill. 562.) 6. If it is held that the letter of plaintiff of April 6, 1866, was a proposition to pay off the note, the contract was complete on the acceptance of that proposition by the defendant in his letter of the 13th. (Mactier v. Frith, 6 Wend. 103, 149; Taylor v. Merch. Fire Ins. Co., 2 Dutcher, N. J., 268, 275, 279, 281, 283.) The proposition of payment first made by the defendant by its letter of April 13, 1866, was a waiver of the forfeiture of the policy, and the plaintiff had a right to accept it and send the balance due by return mail, as requested; and the defendant could not withdraw that proposition after he had sent the balance. If the loss had not happened, the defendant would undoubtedly have kept the money sent. The law will not allow them to be bound or not at their pleasure. The sending of the balance, as stated, was a consummation of the proposition, and, by relation, referred back to the letter of the 13th, waiving the forfeiture. (44 Penn. St. 263; 26 Iowa, 9-54, note; 3 Cow. 79; 29 Barb. 312-14; 25 Barb. 189-91; 7 R. I. 502, 506; City of Davenport v. The Peoria Mar. & F. Ins. Co., 17 Iowa, 276, 288; Krum v. Home Mut. Ins. Co., 42 Mo. 38-41.) 7. The fifth instruction asked by defendant was properly refused. The answer in the application to the question as to the occupancy of the premises being “tobacco-pressing; no manufacturing,” evidently intended to mean that there was no manufacturing of tobacco as distinctive from the business of pressing tobacco. And the court properly instructed on the subject of “incident to the business,” for the plaintiff. The application, so far as the building is concerned, was not a warranty, as it was outside of the property insured, and does not affect this policy. If a warranty at all, it was only so as to the then occupation of the building, and was not a continuing warranty. (24 Ill. 455-61, and cases cited; 32 N. Y. 397, 401; 29 How., N. Y., 384; 17 Mo. 246-8; 20 Conn. 139-43; 7 Hill, 122.)

II. Even in simple contracts by mail, the proposer can not complain if the person to whom the proposal was made accepts in a reasonable time, or before actual notice of a withdrawal of the proposition, although the withdrawal was made long before the acceptance. The tender back of the money received acts in no way to rescind the renewal of the policy after forfeiture. Otherwise an insurance company might tender back the premium and evade the payment of every loss that happens. (See authorities before cited.)

BLISS, Judge, delivered the opinion of the court.

The plaintiff recovered judgment in the Hannibal Common Pleas upon a policy of insurance, which was affirmed in the District Court. The case seems to have been sharply contested, and in exceptions to evidence and in the multitude of instructions to the jury given and refused, the points are developed upon which the defendant's counsel seek to reverse the judgment.

The assured were required by the policy to give notice of the loss forthwith, and within three days to send to the office of the company a particular account of the loss, signed and sworn to by the assured. Notice was at once given, and...