Swinney v. Connecticut Fire Ins. Co. of Hartford

• Decision Date: 11 August 1928
• Docket Number: 4397
• Parties: V. C. Swinney, Respondent v. The Connecticut Fire Insurance Company of Hartford, Appellant
• Court: Missouri Court of Appeals

8 S.W.2d 1090

V. C. Swinney, Respondent v. The Connecticut Fire Insurance Company of Hartford, Appellant

No. 4397

Court of Appeals of Missouri, Springfield District

August 11, 1928

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY. Hon. Guy D. Kirby Judge.

Reversed and remanded.

Schmook & Sturgis, of Springfield, for Appellant.

Sam M Wear and Arch A. Johnson, both of Springfield, for Respondent.

BAILEY J. COX, P. J., concurs. BRADLEY, J. dissenting.

OPINION

BAILEY, J.

This is an action on a 90-day fire insurance certificate dated July 17, 1926, issued by defendant insurance company on grain owned by plaintiff. The amended petition states that the contract of insurance is in words and figures as follows:

"Certificate No. 778. Farm Grain Insurance.

The Connecticut Fire Insurance Company, Hartford, Conn.

"Amount insured: $ 1,360.00. Rate: .40. Premium: $ 5.44.

"In consideration of five and 44/100 dollars does insure V. C. Swinney against all direct loss or damage by fire, under this certificate, which is accepted subject to all the terms, conditions, and stipulations embraced in the standard fire insurance policy form to an amount not exceeding thirteen hundred sixty dollars for the term of ninety days, to wit, from the 17th day of July, 1926, at 12 o'clock noon, on grains and seeds of all kinds (including sacks and bags) cut or uncut (but not including straw or stubble), threshed or unthreshed, shelled or unshelled, in shocks, stacks, and ricks, on cultivated land, in dwelling house, barns, bins, tanks, granaries, and cribs, all while situated as follows:

"Twelve hundred eighty dollars on 1/4 section 29, township 31, range 23, county of Greene, state of Missouri; eighty dollars on 1/4 of section 32, township 31, range 23, county of Greene, state of Missouri.

"Permission granted to use steam or gasoline as power for threshing grain. Lightning clause (printed form). Other insurance permitted.

"Any loss that may be ascertained and proved to be due the assured under this certificate shall be held payable to assured as interest may appear.

"This certificate shall not be valid until countersigned by the only authorized agent of this company at Springfield, Missouri. And all provisions of this policy which are in conflict with the statutes of the state of Missouri are understood, declared, and acknowledged by this company to be inoperative and void.

"Edw. Milligan, President,

"John A. Comins, Secretary."

It is further alleged that on August 8, 1926, while said contract of insurance was in force, the wheat insured was totally lost by fire, and that said wheat was worth more than the amount of the insurance; that plaintiff has performed all duties required by the terms of the policy, and defendant has refused to pay.

The answer consisted of a general denial and a further plea that plaintiff and defendant entered into an agreement of insurance, referred to in plaintiff's petition, whereby defendant, "upon and subject to all the terms, conditions and stipulations in the standard fire insurance policy form, then accepted by plaintiff, insured plaintiff against all direct loss or damage by fire, to the amount not exceeding $ 1,300; * * * that there was and is embraced in said policy the following terms, conditions, and stipulations, to wit: "This policy is made and accepted subject to the foregoing stipulations and conditions and to the following stipulations and conditions printed on the back hereof, which are hereby specially referred to and made a part of this policy.'" It is then alleged that said standard form of policy contained the following provisions, to wit:

"This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void, if the hazard be increased by any means within the control or knowledge of the insured, or if the interest of the assured be other than unconditional and sole ownership, or if the subject of insurance be personal property and be or become incumbered by a chattel mortgage.

"This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof, touching any matter relating to this insurance or the subject thereof, whether before or after the loss.

"In any matter relating to this insurance, no person unless duly authorized, in writing, shall be deemed the agent of this company.

"No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements.

"It is a condition of this policy that no agent of this company has authority to waive any of the above conditions."

It is then denied that the policy sued on was ever in force, for the reason that, at the time of plaintiff's application to defendant for insurance and at the time he procured the alleged insurance agreement, the insured's personal property was incumbered by a valid and subsisting lien of a certain chattel mortgage, of which fact defendant had no knowledge and which plaintiff concealed. It is further alleged that defendant executed the policy sued on in the belief and relying upon the representation that plaintiff was the unconditional and sole owner of the property; that "it never at any time agreed, by indorsement entered on said policy, or added or attached thereto, or otherwise, directly or indirectly, that the interest of plaintiff in said property might be other than unconditional or sole ownership, or to the chattel mortgage lien and incumbrance thereon, so defendant says that by reason of the premises, and under the terms, conditions, and stipulations embraced in said policy as aforesaid, said alleged policy of insurance became and is void and of no force and effect."

The reply denied the new matter set up in defendant's answer and further stated that the certificate No. 778, set out in plaintiff's petition, was the only contract or policy delivered to plaintiff by defendant, and that said contract did not contain the provisions set forth in defendant's answer. A waiver and estoppel is also pleaded, but that question is not now before this court.

On the issues thus formed, a trial was had to a jury, resulting in a verdict and judgment for plaintiff in the sum of $ 1,315.20, from which judgment defendant has appealed.

Defendant assigns error in the failure of the trial court to give its instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's case and at the close of the whole case. In support of this assignment, defendant urges, among other things, that (a) the officially approved standard fire insurance policy was incorporated in and made a part of the insurance contract by reference; (b) that plaintiff cannot repudiate the terms of the contract; (c) that the acceptance of the insurance certificate containing the terms and conditions referred to, there being no mistake, artifice, or concealment on the part of defendant, and such acceptance being unaccompanied by a disclosure of the existence of the chattel mortgage, amounted to a declaration on the part of plaintiff that the insured property was unincumbered, even though no application was taken and no inquiries made by the insurer.

The facts necessary to an understanding of the case are sufficiently shown in a concise statement made in plaintiff's brief, as follows:

"Statement.

"Prior to July 17, 1926, the witness Claude Denby, who was soliciting insurance for J. J. Richesin, appellant's agent at Springfield, Mo., met the respondent, Swinney, and asked him if he wanted insurance on his wheat. Respondent replied that he did. They then estimated the amount of wheat he had, and Denby made a memorandum of it and a memorandum description of respondent's land. This memorandum he took to Richesin's office. The policy was written on July 17, 1926, and by Richesin mailed to Denby to deliver to respondent.

"No written application was made and no questions were asked as to incumbrances on the wheat. And nothing was said about a chattel mortgage by either party; both testifying that they did not think of it.

"The policy, and only policy delivered to Swinney, was the certificate No. 778, shown in appellant's abstract of the record.

"The wheat was destroyed by fire on August 8, 1926. On August 9th, the day following the fire, Swinney mailed to Agent Richesin his check for $ 5.44, the premium on the policy.

"On August 10th, respondent went to agent's office and reported the loss to Richesin. Richesin took him to the office of A. B. Jones, a fire insurance adjuster, and told Swinney that he (Richesin) could not handle the matter further, but that it was turned over to Mr. Jones for adjustment.

"One of the first questions asked respondent by Jones was whether the wheat was mortgaged. Swinney told him that one S. A. Farmer had a chattel mortgage on the wheat at the time it was insured, and that the mortgage was still on the wheat at the time of the fire.

"Jones told him that the mortgage invalidated the policy and that the appellant did not owe him anything, and appellant has continued to deny liability under the policy."

The question of waiver was taken from the jury by the court's instructions and no reference to the testimony in support thereof need be made. In addition to the foregoing statement of facts, the record shows defendant introduced in evidence a duly certified copy of the standard form insurance policy on file in the office of the state superintendent of insurance and by him approved according to law, containing the provision that the policy should be void "if the subject of insurance be personal property...