State ex rel. Williams v. Daues

• Decision Date: 14 March 1927
• Docket Number: 27385
• Citation: 292 S.W. 58
• Parties: STATE ex rel. WILLIAMS et al. v. DAUES et al., Judges
• Court: Missouri Supreme Court

292 S.W. 58

STATE ex rel. WILLIAMS et al. v. DAUES et al., Judges

No. 27385

Supreme Court of Missouri, Second Division

March 14, 1927

James Booth, of Pacific, and R. E. Kleinschmidt, of Hillsboro, for relators.

P. S Terry, of Festus, for respondents.

OPINION

WHITE J.

Relators seek to quash the record of the St. Louis court in the opinion delivered April 6, 1926, whereby that court affirmed the judgment of the circuit court of Jefferson county in the case of C. Marsden and C. Roy Marsden, partners composing the firm of C. Marsden & Son, against John F Williams et al., who are the relators herein. The relators are officers, etc., of an unincorporated association organized for the purpose of insuring the property of its members against loss by fire under section 6464, R. S. 1919. Marsden & Son obtained judgment against the relators in the sum of $ 1,700 upon a policy of fire insurance on their stock of merchandise destroyed by fire in the town of Victoria, Jefferson county.

The ruling of the Court of Appeals of which the relators complained appears in the opinion, as follows:

'The defendants assign error upon the refusal of the court to sustain their demurrer to the evidence. In support of this assignment it is urged that at the time the policy was issued the plaintiffs carried insurance upon their stock in another company, and continued to carry such insurance at the time the loss sued for occurred, in violation of a by-law of the association which provides as follows: 'Any person who is insured in any other company shall not be insured upon the same property in this company.'

'On April 30, 1922, plaintiffs' stock was totally destroyed by fire. The value of the stock at the time it burned, as shown by the plaintiffs' evidence, was $ 4.400. This is uncontroverted by any evidence in the case. At the time the policy in suit was issued there was $ 1,500 other insurance on the stock, which remained in force at the time of the fire. This insurance was paid plaintiffs shortly after the fire. The defendants declined to pay their policy because of the other insurance, but did not return or tender to return, nor deposit in court, the premiums paid by plaintiffs on the policy. There were no false representations made by the plaintiffs in relation to the other insurance. The insurance sued for was solicited by a director of the association, who was ex officio solicitor, appraiser, collector, and adjuster for the association. He inspected the stock and agreed with plaintiffs upon the amount of the insurance, and thereafter the policy was issued and sent to plaintiffs by mail. At the time the insurance was agreed upon between plaintiffs and the director nothing was said concerning other insurance, and the director made no inquiry of the plaintiffs as to whether or not there was other insurance on the stock. Plaintiffs testified that they did not know that other insurance was prohibited. There was no evidence of any fraud on the part of plaintiffs in failing to disclose to the association the existence of other insurance. Under these circumstances there ought to be no question that there was a waiver of the by-law relating to other insurance.'

I. It is claimed that that statement of the law is in conflict with certain rulings of this court in the following cases:

The court in State ex rel. American Yeomen v. Reynolds, 287 Mo. 169, 229 S.W. 1057, had under consideration section 6145, R. S. 1919, providing that in suits on life insurance policies no defense based on misrepresentation in securing the same should be valid unless the defendant at or before the trial should deposit in the court for the benefit of the plaintiff the premium received on such policies. That statute, it was held, did not apply to fraternal benefit associations, and a failure to return the premiums paid was not a waiver of the defense of misrepresentation in the procurement of the policy. The defense was fraud; misrepresentation on the part of the plaintiff in his application for a policy.

The authorities were reviewed at length in State ex rel. v. Trimble, 292 Mo. 371, 239 S.W. 467, and it was held that where the issuance of the policy was procured by misrepresentations, a defense on that account could be made without returning the premiums paid, following exactly the ruling in the Reynolds Case.

Another case of the same kind was Wilson v. Brotherhood of American Yeomen, 297 Mo. 655, 249 S.W. 650, where the opinion cites the Reynolds Case.

In Schwab v. American Yeomen, 305 Mo. 149, loc. cit. 155, 264 S.W. 690, 692, the court used this language:

'A waiver is an intentional relinquishment of a known right. To make out a case of implied waiver of a legal right there must be a clear, unequivocal, and decisive act of the party showing such purpose, or acts amounting to an estoppel on his part.'

The principle is announced in language similar to that used in the Schwab Case in Langdon v. Kleeman, 278 Mo. 236, loc. cit. 242, 211 S.W. 877. Of the last two cases the general statement of the principle regarding an implied waiver must be understood in view of the facts. In the Schwab Case, 305 Mo. loc. cit. 151, 264 S.W. 691, the facts are thus stated:

'The undisputed facts show that at the time the plaintiff made application for this insurance she incorporated in her application certain warranties, which the trial court found to be untrue and breached, that is, she misrepresented the facts in her application for insurance.'

Then follows a description of a surgical operation which she misrepresented. The...