State ex rel. Northwestern Nat. Ins. Co. v. Trimble

• Citation: 20 S.W.2d 46,323 Mo. 458
• Decision Date: 30 July 1929
• Docket Number: 29156
• Parties: The State ex rel. Northwestern National Insurance Company v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

20 S.W.2d 46

323 Mo. 458

The State ex rel. Northwestern National Insurance Company v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals

No. 29156

Supreme Court of Missouri

July 30, 1929

Rehearing Denied September 13, 1929.

Writ quashed.

John H. Newman and C. C. Crow for relator.

(1) The Court of Appeals, in its opinion, states that the Northwestern National Insurance Company had no knowledge of the removal of the property in September, 1923, until after the fire in December, 1924, and under these circumstances the opinion, requiring return of premium, is in direct conflict with and contrary to the last controlling decisions of the Supreme Court. Doerr v. Ins. Co., 285 S.W 965; Schwab v. Brotherhood of America, 264 S.W. 690. (2) Since contracts between persons have been the subject of judicial investigation and since the case of Helm v Wilson, 4 Mo. 35, it has been the law that before a person can recover on a contract, such person must allege and prove a substantial compliance with the terms of the contract and a breach thereof by the defendant, and the law is applicable, except where modified, to insurance companies, as determined by this court in State ex rel. v. Ellison, 269 Mo. 410. In insurance cases, however, the law has been modified to the extent only, that the plaintiff, under an allegation of performance may show a failure to comply with the terms of the contract or a breach thereof, and without alleging waiver or estoppel, prove that the insurance company is estopped or has waived the breach or violation of the terms of the contract, and the decision of the Court of Appeals is contrary to: Andrus v. Ins. Co., 168 Mo. 151; McCullough v. Ins. Co., 113 Mo. 606; Schwab v. Ins. Co., 264 S.W. 690; Johnson County v. Lowe, 72 Mo. 637. (3) The Court of Appeals erred and refused to follow the controlling decisions of the Supreme Court in holding, as it did, that the insurance company was estopped or waived its right to defend against a case where it was clearly not liable because it did not prove affirmatively that it did not waive or was not estopped. That is, demurrer was offered at the close of plaintiff's case showing a clear violation of the contract; no evidence on the question of whether or not defendant did or did not offer to return unearned premium; demurrer overruled; plaintiff permitted to recover, and then in direct violation of all the law in Missouri, the defendant is required to prove that the plaintiff did have a case. If the plaintiff relied upon waiver, or estoppel in an insurance case, the plaintiff was required to prove, although not required to allege, waiver or estoppel. Cases cited under Point 2.

Ashley & Gilbert for respondents.

(1) The relator should have cancelled the policy and returned the unearned premium to the insured immediately upon discovering that the insured property had been moved from the location described in the policy. 5 Cooley's Briefs on Insurance (2 Ed.) 4344; Painter v. Fire Ins. Co., 256 S.W. 531; Mining & Milling Co. v. Fire Ins. Co., 267 Mo. 604. (2) By its failure to cancel the policy and return the unearned premium, the relator has waived the provision of the policy describing the location in which the property was insured. Painter v. Fire Ins. Co., 256 S.W. 531; Malo v. Ins. Co., 282 S.W. 78; Block v. Ins. Co., 290 S.W. 429; Leer v. Ins. Co., 250 S.W. 631. (3) The Court of Appeals is correct in holding that the relator must tender the unearned premium and keep its tender good by pleading it in its answer as a condition precedent to insisting on a forfeiture of the policy by reason of the removal of the insured property. Caldwell v. Ins. Co., 245 S.W. 602; Dyer v. Am. Ins. Co., 244 S.W. 964. (4) The Court of Appeals erred in holding that the facts as proven by plaintiff did not constitute Lacaff the agent of defendant Insurance Company, for the purpose of receiving notice of removal of the insured goods. Hamilton v. Home Ins. Co., 94 Mo. 353.

Seddon, C. Lindsay and Ellison, CC., concur.

OPINION

SEDDON

This is an original proceeding in certiorari commenced in this court, wherein the relator, Northwestern National Insurance Company, seeks the quashal of the record (that is, the opinion and judgment) of the Kansas City Court of Appeals in a certain cause, lately pending on appeal in said Court of Appeals, and ruled adversely to relator by said court, entitled, Mrs. E. C. Luthy, plaintiff and respondent, v. Northwestern National Insurance Company of Milwaukee, Wisconsin, defendant and appellant. The ground of relator's application for our writ of certiorari herein is that the opinion and ruling of the Kansas City Court of Appeals in said cause is in conflict with controlling rulings of this court upon the subject ruled by said Court of Appeals.

The opinion of respondents, under review herein, thus states the nature of the cause pending before the Court of Appeals on appeal, the evidentiary facts therein, and the principal question of law decided by said Court of Appeals:

"This is a suit on a fire insurance policy. There was a verdict and judgment in favor of plaintiff in the sum of $ 850.85, together with $ 77 penalty, and $ 250 attorney's fee for vexatious refusal to pay. Defendant has appealed.

"The facts show that defendant issued a fire insurance policy to plaintiff on January 23, 1923, in the sum of $ 1000, and insuring against fire, for a period of three years, her household goods and kitchen furniture while contained in the premises known as 18 West Fortieth Way, in Kansas City, Missouri. The facts further show that the property was removed from the premises where it was insured to the Monarch Storage Company in said city in the month of September, 1923; that while in the storage house a fire occurred on December 19, 1924, totally destroying the property. Defendant refused to pay the loss, resulting in this suit.

"The defense to the policy was that the property had been removed from the place where it was insured, defendant pleading a clause of the policy providing that, should the property be removed without the written consent of the defendant, the 'policy shall be void.' Plaintiff, over the objection of defendant, introduced evidence tending to show that shortly before and after the furniture was removed she and her son, on her behalf, notified Bunce Lacaff, who plaintiff contends was such an agent of the defendant as to bind the defendant by the receipt of such notice, that the property was being moved and had been moved to the storage house. This controversy ranges over the question as to whether Lacaff was an agent of the character claimed by the plaintiff, or was, in fact, any agent of the defendant at the time of his receipt of the notice of removal, or at any time."

The opinion of respondents then sets out a recital and statement of the evidence bearing upon the relation existing between the defendant insurance company and the said Bunce Lacaff, at and prior to the time the policy of insurance was issued and delivered to the plaintiff, Mrs. Luthy. After which recital and statement of the evidence, the opinion of respondents thus announces the conclusion of law reached by respondents upon the contested question of Lacaff's authority, as an authorized agent of the insurance company, to receive notice of the removal of the property insured under the policy of insurance issued to Mrs. Luthy:

"However, it is substantially conceded that Lacaff was merely a broker, and the question submitted to us is whether, being a broker, did he in this instance, by reason of the peculiar circumstances of the case, become the agent of the defendant for the purpose of receiving notice of the removal of the property. Of course, if defendant received information, through a duly authorized agent, of the removal of the property and failed to cancel the policy and return the unearned premium, its consent to the removal will be presumed. [26 C. J. 228.] Lacaff did not notify defendant, or Van Horn & Ternan, its local agents, of the removal, and the policy was not canceled or the premium returned.

"Defendant insists that under the undisputed facts its demurrer to the evidence should have been sustained. . . .

"It is unnecessary for us to discuss the question of whether there is sufficient evidence tending to show that plaintiff did not regard or treat Lacaff as her agent; but, assuming that there is such evidence, there is no question but that he, Lacaff, was the agent of the defendant for the purpose of delivering the policy and collecting the premium thereon. [Farber v. Amer. Ins. Co., 191 Mo.App. 307, 323, 324.] However, we fail to find any facts in the record showing that Lacaff was the agent of defendant for any other purpose than this, even if it could be said that the facts show that he was the agent for this purpose. We think, unquestionably, that he was not such an agent of defendant as to have authority to receive notice, several months after the policy was delivered, of the removal of the property. [Pringle v. Ins. Co., supra; Park v. Ins. Co., 279 S.W. 246, 249; Edward v. Ins. Co., 100 Mo.App. 695, 709; Smith v. Ins. Co., 188 Mo.App. 297; 9 C. J. 515.]"

It is needless to say that relator does not question herein the correctness of the ruling and conclusion of law reached by respondents touching the contested question of Lacaff's authority to receive notice of the removal of the insured property, on behalf of the relator, Northwestern National Insurance Company. But, after reaching and announcing such conclusion of law, which is favorable to the relator, the respondents furthermore announced in the opinion another conclusion of law, which is set forth in the closing paragraph of respondents' opinion, as follows:

"However, it is...