Smith v. North British & Mercantile Insurance Company
| Citation | 263 S.W. 1031,214 Mo.App. 539 |
| Parties | JAMES E. SMITH, JR., Respondent, v. NORTH BRITISH & MERCANTILE INSURANCE COMPANY, Appellant. |
| Decision Date | 02 July 1924 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court of Scott County.--Hon. Frank Kelly, Judge.
AFFIRMED.
Judgment affirmed.
Bailey & Bailey and Leahy, Saunders & Walther for appellant.
(a) Defendant's demurrer to the evidence at the close of plaintiff's case and at the close of the whole case should have been sustained. The policy, not having been countersigned by a duly authorized agent, never became a binding obligation of defendant. McClure v. Mississippi Valley Ins. Co., 4 Mo.App. 148. (b) A provision in a policy of insurance requiring counter-signature by a duly authorized agent must be complied with to create a valid policy, and the assured was bound to take notice of the limitations of the policy. Joyce on Insurance, sec. 178, p 465, and sec. 530; Wolff v. Dwelling House Ins. Co., 75 Mo.App. 337, 339; Badger v. American Popular Ins Co., 103 Mass. 244; Fidelity & Casualty Co. v Walton, 24 Okla. 671; Noyes v. Insurance Co., 1 Mo.App. 584. (c) And the authority to countersign and issue a policy, being an act entailing responsibility and judgment, cannot be delegated to a third person by the agent. McClure v. Mississippi Valley Ins. Co., 4 Mo.App. 148; Albers v. Insurance Co., 68 Mo.App. 545. (d) If the policy sued upon was valid at all it became so only by ratification of the authorized execution, which had to be pleaded and proven. It is well established in this State that if a party relied on ratification to establish his right he must tender such issue, and having failed to plead it he was not entitled to recover. Capital Bank v. Armstrong, 62 Mo. 59; Wade v. Hardy, 75 Mo. 399; Noble v. Blount, 77 Mo. 242; Loving Co. v. Cattle Co., 176 Mo. 353-54; McClanahan v. Payne, 86 Mo. App., 292. (e) Ratification means the affirmance of that which the party was at liberty to reject. There could be no ratification without full knowledge of all the facts of the unauthorized execution of the policy. Pitts v. Steele Mercantile Co., 75 Mo.App. 221; Citizens Savings Bank v. Man, 129 Mo.App. 26; Butts v. Rubber Co., 169 Mo.App. 657; Craven v. House, 138 Mo.App. 251, 258; Clark v. Clark, 59 Mo.App. 532; Lynn v. Burgoyne (Ky.), 13 B. Mon. 400; 32 C. J. 1135; 1 Mechem on Agency, sec. 395, p. 286. (f) Ratification must have been made prior to the destruction of the subject-matter, otherwise there was nothing upon which the contract of insurance could operate. 1 Mechem on Agency (2 Ed.), secs. 504-505; Riverside Development Co. v. Hartford Ins. Co., 105 Miss. 184, Ann. Cas. 1916-D, 1274; Norwich Union Fire Ins. Co. v. Dalton, 175 S.W. 464. (g) No premium ever having been paid to and the policy never having been delivered by an agent or employee of defendant, no binding contract was ever entered into with plaintiff. 14 R. C. L., pp. 894 and 897. (h) Instruction No. 1, given at the request of plaintiff, purported to cover the entire case and omitted any reference to the defenses pleaded and is therefore, fatally defective. Beggs v. Shelton (1913), St. Louis Court of Appeals, 173 Mo.App. 127, 131; Boyle Mining Co. v. The Fidelity & Casualty Co. (1911), Springfield Court of Appeals, 161 Mo.App. 185, 210; Kelley v. The City of St. Joseph (1913), Kansas City Court of Appeals, 170 Mo.App. 358; Peoples Bank of Ava v. Baker (1917), Springfield Court of Appeals, 193 S.W. 632; Weller v. Plapao Laboratories (1917), St. Louis Court of Appeals, 191 S.W. 1056, l. c. 1060, point 6; Bluedorn v. Missouri Pacific Railway Co., 108 Mo. 439; Alexander v. Kansas City Railway Co. (1921), Kansas City Court of Appeals, 231 S.W. 66; Patterson v. Evans (1914), 254 Mo. 293; Van Zandt v. Wholesale Grocer Co. (1916), 196 Mo.App. 640, 651. (i) None of the instructions given required the jury to find that the plaintiff was the sole and absolute owner of the property at the time of the issuance of the policy and at the time of loss, and an essential element necessary for recovery by plaintiff was entirely omitted. Clevinger v. Northwestern Ins. Co., 71 Mo.App. 73; Jones v. Philadelphia Underwriters, 78 Mo.App. 296; Harness v. Fire Ins. Co., 62 Mo.App. 245; Rogers v. Fire Ins. Co., 186 Mo. 248; White v. Ins. Co., 93 Mo.App. 282. (j) Where the principal instruction purported to cover the whole case and omitted an essential element the error was not corrected by another instruction either for plaintiff or defendant. Such instructions are held to be inconsistent in that one authorized a verdict without finding an essential fact though the other required it. Hall v. Coal & Coke Co., 260 Mo. 369; Bellows v. Travelers Ins. Co., 203 S.W. 985; Yantz v. McVean, 202 Mo.App. 382; Kerr v. Bush, 198 Mo.App. 616; Humphreys v. St. L. & Hannibal R. R., 191 Mo.App. 721; State ex rel. v. Ellison, 272 Mo. 572, 583; Walker v. White, 192 Mo.App. 18; Metcalf v. Runnels, 222 S.W. 894; Defosse v. U. Rys. Co., 201 S.W. 863.
M. G. Gresham and Ward, Reeves & Oliver for respondent.
(a) "While an agent has no power to delegate his agency to another, but he may employ clerks whose acts, as done in his name and recognized by him, either especially or according to his usual methods of dealing with them, will be regarded as his acts, and as such binding on the company." Lingenfelter v. Insurance Co., 19 Mo.App. 252, 265; Carroll v. Insurance Co., 249 S.W. 692. (b) Defendant having issued the policy, received the premium on December 27, 1918, could not on February 28, 1919, cancel the policy and retain the premium. Zallee v. Insurance Co., 233 S.W. 280; Andrus v. Insurance Co., 168 Mo. 151; Jaggi v. Insurance Co., 191 Mo.App. 391. (c) And in this connection, if it becomes pertinent, we might call the court's attention to the fact that: "For over seventy years the practice has obtained in this State in suits upon insurance policies to admit proof of waiver without requiring the waiver relied upon to be alleged in the pleadings." Andrus v. Insurance Co., 168 Mo 161; Scott v. Insurance Co., 222 S.W. 1047; McCullough v. Insurance Co., 113 Mo. 616. (d) And defendant having received this premium and kept it after having been notified that its agent Dover, had not paid back the premium, by a letter from plaintiff's attorney on the 18th of January, 1922, (Abs. 34), and defendant being advised of this fact retained the premium, waived the alleged defect in countersigning of the policy. Hayden v. Insurance Co., 221, S.W. 441; Gold Issue Co. v. Insurance Co., 267 Mo. 604; Harland v. Insurance Co., 192 (Mo. App.) 202. (e) This policy was countersigned "C. E. Dover, Agent." It was not countersigned "C. E. Dover, by Clarence Scott;" but it bore on its face the earmark of validity, and the plaintiff was not required to know that in truth and fact this signature was actually written by C. E. Dover. Reiter v. Insurance Co., 243 S.W. 197; Shook v. Insurance Co., 154 Mo.App. 395. (f) This policy, as all others, acknowledged the receipt of the first premium; the defendant from its head office in New York and from its State Agent in Missouri in their letters over their own signatures admit "that the policy was issued;" admit that the policy was in evidence and binding from December 27, 1918, to February 28, 1919; and with these admissions over defendant's signature and introducing the policy and showing the property was destroyed by fire make a primafacie case for plaintiff, and throws the burden upon defendant to come forth with affirmative proof, and in absence of such proof the verdict must be for plaintiff. Zallee v. Insurance Co., 223 S.W. 280; Lafferty v. Insurance Co., 229 S.W. 750; Godfrey v. Fire Insurance Co., 232 S.W. 231 (and cases cited). (g) The policy acknowledged the receipt of first premium, as this and all fire insurance policies do, the insured is estopped to deny such payment for the purpose of showing such policy is void. Berryman v. Insurance Co., 285 Mo. 279; Salisbury v. Insurance Co., 279 Mo. 40. (h) All the instructions given, for both plaintiff and defendant, must be read together, and if taken as a whole they correctly state the law, then all essentials to a recovery or to the defense need not appear in one instruction. Wingfield v. Railroad, 257 Mo. 347; Gregore v. Burris, 153 Mo. 232; Gibler v. Railroad, 203 Mo. 222; Stanffer v. Railroad, 203 Mo. 332-333; State ex rel. v. Trimble, 291 Mo. 233-234; Holeman v. City of Macon, 177 S.W. 1078; Lange v. Railroad, 208 Mo. 458; Anderson v. Railroad, 161 Mo. 411. (i) If plaintiff asks instructions embracing all the elements of his case, he need not include in his instruction matter covering defendant's allegations when defendant offers instructions covering his defense. State ex rel. Jenkins v. Trimble, 291 Mo. 227; Davis v. Railway, 182 S.W. 827; Holeman v. City of Macon, 177 S.W. 1078. (j) The authorities cited by appellant are not in point as defendant tendered instructions, which the court gave, covering its defenses, and under such circumstances the rule is that where plaintiff's instructions omit some feature which is not an element of his cause of action, but is merely a defensive matter, the omission is cured by defendant submitting that issue. State ex rel. v. Trimble, 291 Mo. 227; Hill v. Johnson, 249 S.W. 138; State v. Roberts, 242 S.W. 674; Davis v. Railway Co., 182 S.W. 827; Hoagland v. Railway Co., 209 S.W. 569; Haggard v. Rogers-Schmitt Wire & Iron Co., 249 S.W. 712. (k) Defendant, under division four of his brief contends that the instruction did not require jury to find that the plaintiff was the owner of the goods in question. But there is nothing to this contention for the following reasons: (1) That was not a contested issue in the case, and it was conceded by both parties that this was plaintiff's...
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