Smith v. Insurance Co., 31412.

• Citation: 49 S.W.2d 42
• Decision Date: 12 April 1932
• Docket Number: No. 31412.,31412.
• Parties: A.B. SMITH and E.K. SMITH, Co-Partners, Doing Business Under the Firm Name and Style of A.B. SMITH LUMBER COMPANY v. OHIO MILLERS MUTUAL FIRE INSURANCE COMPANY, a Corporation, Appellant.
• Court: United States State Supreme Court of Missouri

49 S.W.2d 42

A.B. SMITH and E.K. SMITH, Co-Partners, Doing Business Under the Firm Name and Style of A.B. SMITH LUMBER COMPANY v. OHIO MILLERS MUTUAL FIRE INSURANCE COMPANY, a Corporation, Appellant.

No. 31412.

Supreme Court of Missouri, Court en Banc.

April 12, 1932.^*

Appeal from Cape Girardeau Circuit Court. — Hon. Frank Kelly. Judge.

JUDGMENT AFFIRMED.

Samuel A. Harper, Chas. M. Howell, Dearmont & Russell, Gallivan & Finch, N.C. Hawkins and Daniel V. Howell for appellant.

(1) The respondents failed to make a submissible case as to the payment of premium and the court should have sustained defendant's demurrer at the close of the case and given defendant's peremptory instruction. (a) There was no proof that the premium of $342 was paid "by plaintiffs to defendant" as alleged in plaintiffs' petition. "The probata must correspond with the allegata." Peetz Bros. v. Vahlkamp (Mo.), 11 S.W. (2d) 26; Cluck v. Abe (Mo.), 40 S.W. (2d) 558. (b) Plaintiffs' own uncontradicted evidence showed that the premium, if paid by plaintiffs, was paid in part by plaintiffs taking credit for rent owed plaintiffs by Auber Smith individually. This would not constitute payment. Hoffman v. Mut. Life. Co., 92 U.S. 161, 23 L. Ed. 539; Sullivan v. Life Ins. Co., 15 Mont. 522; Briggs v. Collins, 167 S.W. (Ark.) 1114, L.R.A. 1915a, 686; Folb v. Fireman's Ins. Co., 133 N.C. 179; Lycoming Fire Ins. Co. v. Storrs, 97 Pa. St. 354, par. 4 of Syl.; Kerr on Ins., sec. 294; Greenwood v. Burns, 50 Mo. 52; Wheeler and Wilson v. Givan, 65 Mo. 89; Gowling v. Express Co. (Mo. App.); 76 S.W. 712; Publishing Co. v. Corbett, 165 Mo. App. 7; Cannon v. Gibson, 162 Mo. App. 386; Robertson v. Davis (Mo. App.), 15 S.W. (2d) 882; Peetz Bros. v. Vahlkamp (Mo.), 11 S.W. (2d) 29; 2 C.J. p. 631, sec. 271; 2 C.J. p. 438, sec. 33. It must be conclusively presumed that the defendant intended the collection of the premium to be made in cash. Peetz Bros. v. Vahlkamp (Mo.), 11 S.W. (2d) 26; Realty Co. v. Davis (Mo. App.), 251 S.W. 419. (c) Plaintiffs cannot recover on the theory that defendant sold the policies in question to Auber Smith on credit (or that he was an independent contractor) for the reason that plaintiffs' petition alleged a payment of the premium to defendant and only by their reply did respondents plead the theory of a credit sale or independent contractor. This was a departure from the petition and no recovery could be had thereon. Wolfersberger v. Miller (Mo.), 39 S.W. (2d) 758; Hammons v. Hammons (Mo.), 253 S.W. 1056; Mathieson v. Ry., 219 Mo. 542; Swissman v. Wells (Mo. App.), 255 S.W. 937; Quigley v. Bartlett (Mo. App.), 260 S.W. 494. (d) Plaintiffs' petition having alleged the payment of the premium "by plaintiffs to defendant" could not abandon that theory and recover on the theory that defendant was paid by credit extended to Auber Smith and payment "by plaintiffs to defendant" was unnecessary. Behen v. St. Louis Transit Co., 186 Mo. 430. (e) Moreover, plaintiffs could not recover on the independent contractor theory, or any other theory, if Auber Smith was their own agent, and a broker has been held to be the agent of the insured under facts similar to those shown in the present record. Edwards v. Ins. Co., 100 Mo. App. 709; Pringle v. Ins. Co., 123 Mo. App. 714; Buck v. Stuyvesant (Mo. App.), 327 S.W. 842; Park v. Casualty Co. (Mo. App.), 279 S.W. 246; Harris v. Security Co., 25 S.W. (2d) 484; Security Co. v. Ins. Co., 243 Pac. 1043. (f) There is no evidence of substance tending to show that Auber Smith was an independent contractor. The entire transaction was handled in the usual and ordinary way and according to the general, uniform and established customs and usages of the insurance business. (2) Auber Smith was employed by plaintiffs and had charge of and looked after all their insurance matters. These facts were not disclosed to defendant who dealt with him as a disinterested broker. Therefore, if Auber Smith assumed to act as agent for defendant in any capacity respecting said insurance, including the purported collection of said premium, his acts were void and not binding upon the defendant because of the fraudulent undisclosed dual agency. Windsor v. Ins. Co. (Mo.), 29 S.W. (2d) 1117; Cummings v. Parker, 250 Mo. 437; Corder v. O'Neill, 207 Mo. 632; Connor v. Black, 119 Mo. 126; McElroy v. Maxwell, 101 Mo. 294; Lee v. Smith, 84 Mo. 304; Murdock v. Milner, 84 Mo. 96; Atlee v. Fink, 75 Mo. 104; Crumley v. Webb, 44 Mo. 451; Thornton v. Irwin, 43 Mo. 594; Jacques v. Edgwell, 40 Mo. 77; Boardman v. Florez, 37 Mo. 560; Johnson v. Glasscock, 29 Mo. 191; Newman v. Friedman, 156 Mo. App. 148; Winter v. Carey, 127 Mo. App. 601; Atterbury v. Hopkins, 122 Mo. App. 172; Harper v. Fidler, 105 Mo. App. 680; McClure v. Ullman, 102 Mo. App. 697; Rosenthal v. Drake, 82 Mo. App. 358; Norman v. Roseman, 59 Mo. App. 682; Reese v. Jarvis, 36 Mo. App. 641; DeSteiger v. Hollinton, 17 Mo. App. 382; Ins. Co. v. Ins. Co., 8 Mo. App. 408; Huggins Candy Co. v. Ins. Co., 41 Mo. App. 530. (3) Fraud, in the concealment of Auber Smith's relation to plaintiffs and with reference to the alleged payment of the premium and dual agency and the concealment of the dual agency of Auber Smith constituted such fraud as to relieve the defendant of liability and preclude recovery under the fraud clause of the policy and also under the general law. Decker v. Deimer, 229 Mo. 334; Wolfersberger v. Miller, 39 S.W. (2d) 964; Denny v. Guyton (Mo.), 40 S.W. (2d) 590; Leimkuhler v. Wessendorf (Mo.), 18 S.W. (2d) 445; Ins. Co. v. Carson, 186 Mo. App. 230; Bank v. Saw Co., 104 Mo. 425; Adv. Co. v. Wannamaker, etc., 115 Mo. App. 287; Klebba v. Streumph (Mo. App.), 23 S.W. (2d) 205; Bank v. Kellems (Mo.), 9 S.W. (2d) 967; Hornblower v. Crandall, 7 Mo. App. 220; Judd v. Walker, 215 Mo. 312; Paving Co. v. Inv. Co. (Mo.), 274 S.W. 823; 27 C.J. p. 11, sec. 121 B; sec. 122. (4) The theory that the premium was paid defendant by extended credit to Auber Smith as an independent contractor and the theory that it was paid "by plaintiffs to defendant" through Auber Smith as agent, are inconsistent. Defendant was not liable on the independent contractor theory because that theory was not set up in the petition (and for other reasons), and was not liable on the agency theory because of the rent transaction. Therefore the court should have directed a verdict for defendant. State ex rel. v. Shelton, 249 Mo. 660; Crews v. Wilson (Mo.), 281 S.W. 44; Green v. Mo. Pacific, 192 Mo. 132; Rutledge v. Ry., 110 Mo. 312; O'Dell v. Lead Co (Mo. App.), 253 S.W. 397; Hinkle v. Lovelace, 204 Mo. 208; Kuhn v, Lusk, 281 Mo. 324, 219 S.W. 638. (5) Notice of cancellation for nonpayment of premium was given, effective March 16, 1921, and was received by plaintiffs. Thereafter plaintiffs made no protest against the cancellation and no claim of payment of premium but by their conduct waived their rights, if any, abandoned the policy and acquiesced in and consented to the cancellation until after the fire. Therefore, the policy was cancelled and plaintiffs were estopped to claim it was in force at the time of the fire. Berry v. Cobb (Mo. App.), 20 S.W. (2d) 298; Mitchell v. Bank (Mo. App.), 282 S.W. 731; Derby v. Donahoe, 208 Mo 684; Norman v. Construction Co. (Mo. App.), 18 S.W. (2d) 560; Randolph v. Club (Mo.), 15 S.W. (2d) 839; Adv. Co. v. Wannamaker, 115 Mo. App. 281; Palmer v. Welch, 171 Mo. App. 597; Lawson v. Edwards (Mo. App.), 293 S.W. 794; Englehardt v. Cravens (Mo.), 281 S.W. 715; Delashmot v. Teeter, 261 Mo. 441; 10 R.C.L. 668, 690, 692, 693; 3 Boyce on Ins., sec. 1640; Bishop on Contracts, sec. 792; 40 Cyc. pp. 267-68, sec. 1; Decker v. Deimer, 229 Mo. 334; Denny v. Guyton (Mo.), 40 S.W. 590. (6) On plaintiffs' theory that plaintiffs and defendant each dealt with Auber Smith as an independent contractor and that he was not the agent of either party, and that he obtained the policy from defendant on his own credit and plaintiffs did not owe defendant but owed him for the premium on the policy, defendant was not required to tender or refund anything to the plaintiffs at any time in order to cancel the policy and the notice of cancellation effectively cancelled the policy. Berry v. Equitable (Mo.), 298 S.W. 67; Thomas v. Agency (Mo. App.), 5 S.W. (2d) 660; Gruen v. Ins. Co., 169 Mo. App. 161. (7) The court committed reversible error in overruling defendant's special demurrers 3-A, 5-A and 7-A, and in refusing defendant's withdrawal Instructions 4-A, 6-A and 8-A, and Instruction 10-A. Special demurrer 3-A, and withdrawal Instruction 4-A, relating to independent contractor, were erroneously refused for the reason that the independent contractor doctrine was not set up in the petition, and was not supported by substantial evidence. Special demurrer 5-A and withdrawal Instruction 6-A, relating to the theory of payment of premiums by credit extended to Auber Smith, were erroneously refused for the reason that there was no pleading upon which to base the credit theory and no evidence to support the same. Special demurrer 7-A and withdrawal Instruction 8-A, and Instruction 10-A were erroneously refused for the reason that there was no evidence tending to show that Auber Smith was the agent of the defendant only, or if so that the payment was made to him in a way that was binding on the defendant. (8) The court erred in giving Instructions 3, 4, 5 and 6 for the reasons: (a) That each of said instructions confuse the jury and the issue by substituting dual action for dual agency. (b) Each of said instructions is in conflict with Instruction H, in this that under Instructions 3, 4, 5, and 6, the jury was required to find that Auber Smith acted for both parties and Instruction H only required the jury to find that it was his duty to act. Giving conflicting instruction constitutes reversible error. Seithel v. St. Louis Dairy Co. (Mo.), 300 S.W. 280. (c) Said instructions are erroneous because they are confusing and...