Standard Leather Company v. Mercantile Town Mutual Insurance Company

• Decision Date: 26 May 1908
• Citation: 111 S.W. 631,131 Mo.App. 701
• Parties: STANDARD LEATHER COMPANY, Appellant, v. MERCANTILE TOWN MUTUAL INSURANCE COMPANY, Respondent
• Court: Missouri Court of Appeals

111 S.W. 631

131 Mo.App. 701

STANDARD LEATHER COMPANY, Appellant, v. MERCANTILE TOWN MUTUAL INSURANCE COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

May 26, 1908

Appeal from St. Louis City Circuit Court.--Hon. Jas. E. Withrow Judge.

REVERSED AND REMANDED.

STATEMENT.--The property insured is described in the policy in suit as follows:

"Standard Leather Company of Pittsburg, Pa. $ 500.

"On the following described property, occupied by the assured as a Patent Leather Factory and Finishing house situate on the line of West Penn. Railroad, near Cheswick, Allegheny county Pa.

"On all of their buildings, whether built in whole or in part of brick or wood, gravel or iron roofs, including all additions foundations, pavements, furnaces, ovens and their contents flues, stacks, machinery, machines and parts of same dynamos, switch-board and connections, engines, boilers, tanks, leather-working machinery, shafting, belting pulleys, hangers, vats, tables, elevators and connections, tools, hose, watchman's clock and all other machinery appertaining to or used in the manufacture of patent leather and on stock manufactured, unmanfactured or in process, including packages full and empty, and all other material and supplies their own or held by them in trust or sold, but not removed, and office furniture and fixtures, books, stationery and office supplies, all while contained in and on premises above described.

"Other insurance permitted.

"Privilege granted to make alterations, additions and repairs, and to work at all hours.

"Permission to use natural gas for fuel and light and to generate and use electricity for light and power in the above mentioned premises, when the entire equipments are in full compliance with the standard of Board of Fire Underwriters of Allegheny county, Pa.

"This insurance does not cover and shall not be liable for loss to accounts, bills, currency, deeds, evidence of debt, money, notes or securities."

In the Liverpool, London & Globe Insurance Company's policy, referred to in the policy in suit, the description is as follows:

"On all their brick, frame or other buildings and sheds, and all additions, extensions and attachments thereto, and permanent fittings and fixtures of all kinds therein or thereon, including engines, boilers, stacks and connections, machines and machinery, and parts and extra parts thereof, shafting, belting, pulleys, hangers, gearing, millwright work, electric light plant and equipment complete, tools, implements, apparatus, appliances, utensils, furniture and fixtures, catalogues and all other printed matter, stationery and office supplies, and all other equipment and furnishment of every kind, used for use in the operation, maintenance and protection of their property; together with all stock of every nature, manufactured, unmanfactured, or in process, and all materials, supplies and packages for the production thereof, the property of the assured, or held in trust, or sold but not delivered or removed, all while contained in any or all of the above described buildings and sheds, and additions, extensions or attachments thereto, or on premises owned or leased by the assured, situate at or near Cheswick Station, on the line of the Western Pennsylvania Railroad, Allegheny county, Pa., and occupied solely by the assued for the manufacture of leather and other purposes, incidental to their line of business, and agreeable to a plan on file in the office of Negley & Clark Company, Insurance, Pittsburg, Pa.

General Privileges.

"Privileged to make additions, alterations, improvements and repairs, and this insurance to cover thereon and therein, to work at all hours, to use natural gas for fuel and light, and necessary oils for lighting, lubricating and other purposes, and generally to do such work and to use such materials and supplies as may be necessary in the conduct of their business; and for other insurance without notice until required.

"This insurance does not cover loss to accounts, bills, evidence of debt, deeds, money, notes or securities.

Electric Light and Dynamo Clause.

"Privileged to generate and use electric lights when the entire equipment is in full compliance with the Standard of the Board of Fire Underwriters of Allegheny county, Pa., and a certificate obtained from said board to that effect. It being understood that no alterations shall be made in the equipment after the certificate is issued without consent from said board."

Reversed and remanded.

Bland & Cave for appellant.

(1) A stipulation in a policy that it shall be void if the insured is not the sole and unconditional owner of the property does not refer to encumbrances upon the property, but to the character and quality of the title. It is well settled that this provision is not violated by the existence of liens or encumbrances. Kerr on Insurance, sec. 151; Boulware v. Insurance Co., 72 Mo.App. 639; Bushnell v. Insurance Co., 110 Mo.App. 223; Pres. etc. v. Insurance Co., 1 Pitts. (Miss.), 41 So. 5; 1 May on Insurance, sec. 287; Ostrander on Insurance, secs. 71, 72; 19 Cyc. of L. & P., 694-95; 11 Cooley on Insurance, p. 1373, citing the following cases in point: Insurance Co. v. Meschendorf, 14 Ky. Law Rep. 757; McClelland v. Insurance Co., 107 La. 124; Insurance Co. v. Beck, 43 Md. 358, Insurance Co. v. Fuller, 53 Neb. 811; Slobodisky v. Insurance Co., 53 Neb. 816; Stamping Co. v. Insurance Co., 24 N.Y.S. 646; Chandler v. Insurance Co., 88 Pa. 223; Insurance Co. v. Dunham, 117 Pa. 460; Collins v. Insurance Co., 165 Pa. 298; Steinmeyer v. Steinmeyer, 64 S.C. 413; Insurance Co. v. Crockett, 7 Lea (Tenn.) 725; Insurance Co. v. Lancaster, 7 Tex. Cir. App. 677; Insurance Co. v. Brooks (Tex.), 32 S.W. 714; Insurance Co. v. Swann (Tex.), 41 S.W. 519; Insurance Co. v. Nalls (Va.), 44 S.E. 896; Insurance Co. v. Weill, 28 Grat. (Va.) 389; Insurance Co. v. Rodefer, 92 Va. 747, 53 Am. St. Rep. 846 and notes; Carrigan v. Insurance Co., 53 Vt. 418; Wolpert v. Assur. Co., 44 W.Va. 734; Vankirk v. Insurance Co., 79 Wis. 627; Gettelman v. Insurance Co., 97 Wis. 237. (2) Where, by the terms of the policy (as here) no disclosure is required of the assured as to the extent of their interest, and no inquiry is made in regard thereto, they may properly describe the property as "theirs," although subject to a mortgage, in spite of a provision of the policy making it void if the interest of the insured be not truly stated herein. Mers v. Insurance Co., 68 Mo. 127. (3) The burden is on the defendant to show that there was not at all times a policy in the Liverpool & London & Globe Insurance Co. in form concurrent with the policy sued on and on the identical property covered by it in order to defeat a recovery on that ground. 19 Cyc. of L. and P., 936; Allen v. Insurance Co. (Idaho), 88 P. 245; Cooley on Insurance, pp. 1181-2 and cases cited; Russell v. Insurance Co., 84 Iowa 93; Boulware v. Insurance Co., 112 Ala. 422; Sullivan v. Insurance Co. (Tex.), 34 S.W. 999; Insurance Co. v. Farmsworth, 72 Miss. 555; Blasingame v. Insurance Co., 75 Cal. 633; Insurance Co. v. Reynolds, 32 Gratt. 613; Campbell v. Insurance Co., 98 Mass. 381; Insurance Co. v. Ewing, 92 U.S. 377; Roach v. Insurance Co., 28 S.C. 431; 7 Ency. of Evidence, 516 and cases cited.

OPINION

GOODE, J. (after stating the facts).

Plaintiff is a corporation organized under the laws of the State of Pennsylvania, and defendant is a town mutual insurance company organized under the laws of the State of Missouri. As such it is exempt from the general insurance laws of the State. [R. S. 1899, sec. 8024.] Defendant issued a policy of insurance to plaintiff on certain property belonging to the latter, situate on the line of the West Pennsylvania Railroad Company at Cheswick, Allegheny county, Pennsylvania. The policy ran from July 30, 1903, to July 30, 1904. It covered what appears to have been a factory belonging to plaintiff at the place mentioned, including all the buildings of the factory, the machinery, tools, stock, and other property which will be more particularly mentioned in considering one of the defenses. The property insured was consumed by fire on July 12, 1904, while the policy was in force, the destruction being total. As the indemnity provided in the policy was not paid, this action was instituted to recover the sum, to-wit, $ 500. The property appears to have been of great value and was insured, the evidence tends to show, for upwards of eighty thousand dollars. Several defenses were interposed based on supposed breaches of warranties contained in the policy, but only two have been insisted on in the briefs for defendant and they only will be noticed. The policy contained a clause providing it should be void if the interest of the insured in the property covered was other than unconditional and sole ownership. At the date of the policy there was an outstanding mortgage on the real property originally given to secure a note of $ 7,000, for part of the purchase price of the realty, on which note there was an unpaid balance of $ 3,500. It is contended the existence of this mortgage was a breach of the clause recited and rendered the policy void. No inquiries by the company or representations by plaintiff about the title were shown to have been made when the insurance was applied for, nor are mortgages or incumbrances mentioned in the policy. Another stipulation was that the entire policy should be null and void if there was not at the time it was issued, or if afterwards there should cease to be, other fire insurance in the Liverpool, London & Globe Insurance Company of Liverpool for an amount not less than three times the amount of defendant's policy in form concurrent with said policy and on the identical property covered...