Stubbins v. State Farmers' Mut. Ins. Co.

• Decision Date: 04 April 1921
• Docket Number: No. 13706.,13706.
• Citation: 229 S.W. 407
• Parties: STUBBINS v. STATE FARMERS' MUT. INS. CO. OF MISSOURI.
• Court: Missouri Court of Appeals

229 S.W. 407

STUBBINS v. STATE FARMERS' MUT. INS. CO. OF MISSOURI.

No. 13706.

Kansas City Court of Appeals. Missouri.

April 4, 1921.

Appeal from Circuit Court, Clinton County; A. D. Burnes, Judge.

"Not to be officially published."

Action by Mrs. M. B. Stubbins against the State Farmers' Mutual Insurance Company

C. H. Harrison, of Cameron, and Wm. M. Fitch, of St. Louis, for appellant.

W. S. Herndon, of Plattsburg, and Broaddus & Crow, of Kansas City, for respondent,

BLAND, J.

This is a suit upon a tornado insurance policy in the sum of $1,200. The policy was issued by the defendant upon a tobacco barn in which plaintiff had a life estate. There was a total loss by the barn being blown to the ground, but defendant refused to pay the loss, resulting in this suit. There was a verdict and judgment for plaintiff in the full amount, and defendant has appealed.

It was provided in the policy that it should be void "if the interest of the insured be not truly stated in the application," and if such interest "be other than unconditional and sole ownership in fee, unless the exact nature of the title of the insured is stated in the application, or indorsed on this policy of insurance." It is also provided that no officer or agent should have power to waive any provision or condition of the policy unless the waiver should be indorsed upon the policy. The application provided that all statements made therein were those of the insured, and that they should be regarded as warranties, and that any concealment of the truth as to the facts concerning the subject-matter of the insurance should render the policy void; that the insured warranted that no statement made by any agent of the company to her should relieve the insured from the full force and effect of the warranties therein contained; and that the agent of the company receiving the application should not in any way bind the company by any oral statements, promises or agreements. It further provided that insured should pay promptly all assessments levied, and upon her failure to do so the policy should become void. The application by reference made defendant's by-laws a part of the contract. Section 34 of the by-laws provided that no agent of any kind should have power to waive any of the provisions of the bylaws, constitution, or policies, and that no soliciting agent should make any such waiver or change any of the provisions of applications, policies, the by-laws, or, constitution.

The evidence shows that defendant's agent came to plaintiff and saw her at the bank just before her train was leaving, and solicited the insurance from her. She told him that her train was coming, and she did not have time to talk to him. He walked from the bank to the station with her, soliciting and explaining the insurance. Plaintiff agreed to take out the insurance, and told the agent, "I will just sign it and go on, and you can fill it out." She told him that she had a life estate in the property. After plaintiff had signed the application and had left, the agent filled it out, and in answer to the question "Have you a fee-simple title to the property described in this application?" he inserted the word, "Yes."

It is insisted that the policy is void for the reason that the insured did not have a fee-simple title to the property as warranted by her in the application and in the policy. We think that this contention would be good if the company were not estopped by the act of the agent in inserting this information in the application, instead of placing therein the information given to him by the insured. While the application, policy, and by-laws provide that the agent could not waive or change their provisions, they do not have the effect of preventing an estoppel of defendant from asserting that plaintiff did not have a fee-simple title in the property. The agent had authority to take applications, and in doing so was defendant's agent, and not plaintiff's, and, notwithstanding the limitations placed upon his authority in the application, policy, and by-laws, defendant is estopped from showing any breach of warranty in reference to the matter. Springfield Steam Laundry Co. v. Ins. Co., 151 Mo. 90, 52 S. W. 238, 74 Am. St. Rep. 521; Terminal Ice & Power Co. v. Security Ins. Co., 198 S. W. 1124; Turner v. Home Ins. Co., 195 Mo. App. 138, 189 S. W. 626; Kring v. Mut. Ins. Co., 195 Mo. App. 133, 189 S. W. 628; La Font v. Home Ins. Co., 193 Mo. App. 543, 549, 182 S. W. 1029; Farber v. Amer. Automobile Ins. 191 Mo. App. 307, 326, 177 S. W. 675; Ormsby v. Ins. Co., 105 Mo. App. 143, 79 S. W. 733.

It is insisted that the court erred in excluding defendant's offer to show a cancellation of the policy for plaintiff's failure to pay assessment No. 15, levied on or about July 8, 1915. Section 16 of the by-laws provides that

"All losses of this company shall be paid by assessments levied on all the property insured in this company, pro rata, and shall only be levied by the board of directors when in their judgment it is necessary for such purposes."

Section 20 of defendant's by-laws provides as follows:

"Whenever the majority of the members of the board of directors present shall find it necessary to order an assessment under the constitution and by-laws of this company, for the payment of losses and expenses then accrued, or which may accrue within twelve months thereafter, such order shall be in writing, and signed by the president and secretary, and it shall state the items of losses and expenses then next ensuing; and such assessment when so made, ordered and signed, shall be prima facie evidence in all of the courts of this state, that the rate...