Tinsley v. Aetna Insurance Company, Hartford, Connecticut

• Decision Date: 12 July 1918
• Parties: J. O. TINSLEY, Respondent, v. AETNA INSURANCE COMPANY, HARTFORD, CONNECTICUT, Appellant
• Court: Missouri Court of Appeals

205 S.W. 78

199 Mo.App. 693

J. O. TINSLEY, Respondent, v. AETNA INSURANCE COMPANY, HARTFORD, CONNECTICUT, Appellant

Court of Appeals of Missouri, St. Louis

July 12, 1918

Appeal from the Circuit Court of Lincoln County.--Hon. Edgar B Woolfolk, Judge.

AFFIRMED.

Judgment affirmed.

Chas H. Stephens, Chas. H. Stephens, Jr., and R. L. Sutton of Counsel for appellant.

Stephens Lincoln & Stephens and Sutton & Huston for appellant.

(1) An abandonment or an offer to abandon is an indispensable prerequisite of a claim for a constructive total loss. The first instruction given by the court at the plaintiff's request is erroneous, for charging, in accordance with the policy provision, as to a constructive total loss without reference to the question of abandonment. As there was confessedly no abandonment and no offer to abandon, the whole instruction is misleading and erroneous. 26 Cyc. 697; Globe Ins. Co. v. Sherlock, 25 O. S. 50, at 65; Insurance Company v. Canada Sugar Refining Co., 87 F. 491; Stewart v. The Greenup Marine Ins. Co., 2 H. L Cases 159 Thomas v. The Rockland Ins. Co., 45 Me. 116; Norton v. The Lexington Ins. Co., 16 Ill. 245; Gomila & Co. v. Hibernia Ins. Co., 40 La. Ann. 553; Thompson Steel Co. v. Boylston Ins. Co., 12 Mo.App. 244; 2 Parsons on Marine Ins. (1 Ed.), p. 110. (2) The second instruction given by the court at plaintiff's request is erroneous for ignoring the agreed value of the boat as fixed by the policy. The policy fixed the value at $ 15,000 and that valuation concluded the parties. The trial court also erred on this point in permitting plaintiff over defendant's objection to introduce opinion evidence of a greater value. Lockwood v. The Sangamo Ins. Co., 46 Mo. 71; Insurance Co. v. McLoon, 100 Mass. 475; The Potomac, 105 U.S. 635; Standard Marine Ins. Co. v. Nome, etc., Co., 133 F. 646; Sturm v. Atlantic Mutual Ins. Co., 63 N.Y. 77; 4 Cooley's Brief on Insurance, p. 2984; 26 Cyc. 672. (3) The court erred in refusing to consider the well established rule of deducting one-third new for old from the cost of repairs in estimating the amount of damage to the boat and in refusing defendant's instructions Nos. 7, 8 and 9 covering this point. The policy provided for such allowance, which, irrespective of the policy provision, is a well established rule of the law of marine insurance in the adjustment of partial losses. Kerr v. The Quaker City Ins. Co., 33 Mo. 158; Wallace v. Ohio Ins. Co., 4 Ohio 235; Perry v. Ohio Ins., Co., 5 Ohio 305; Globe Ins. Co. v. Sherlock, 25 O. S. 68; Joyce on Insurance (1 Ed.), sections 3078 and 3079; 4 Cooley's Briefs on Insurance, p. 2994; Byrnes v. National Ins. Co., 1 Cowden (N. Y.), 265; Eager v. Atlas Ins. Co., 14 Pickering, 141, 147; Richards on Insurance (3 Ed.), section 209; 19 American & English Encyc. of Law, p. 1063, 26 Cyc. 676, and cited. (4) Section 7022, R. S. 1909, has no application to this case. On a proper construction that section does not apply to marine insurance or to personal property. Paragraph 5 of plaintiff's policy provides that in case of partial loss it shall be the duty of the plaintiff to repair the boat, and that the insurance company, after making the deduction of one-third new for old, shall contribute to the cost of repairs in the proportion which the amount of the policy bears to the agreed value of the boat. Section 7022 does not affect such provision. In any event the section does not determine the method of adjusting or fixing the amount of a loss or the proportion for which the defendant would be liable. Sections 6009 and 6010, R. S. 1879; Sections 5897, 5898 and 5899, R. S. 1889; Sections 7969, 7970, 7971, R. S. 1899; Sections 7020, 7021, 7022, R. S. 109. (5) Irrespective of any statutory questions, the third instruction is erroneous in fixing the defendant's proportion at one-tenth of the entire loss. As there was $ 14,500 of total insurance and defendant's policy was for $ 1000, the defendant at most was liable for 10/145 and not 1/10. Hana v. Insurance Co., 109 Mo.App. 157. (6) Section 7023, R. S. 1909, has no application to a policy of marine insurance, and therefore the policy provision that the defendant should only be liable for such proportion of the loss or damage as the amount to-wit, $ 1000, bore to the agreed value of the vessel, to-wit, $ 15,000, or 1/15, was valid and enforcible. Nalley v. Home Ins. Co., 250 Mo. 452, at pp. 471, 472, 474; Laws of 1893, p. 186; 2 Parsons on Marine Insurance (1 Ed.), pp. 405, 406; 26 Cyc. 672; Trull v. The Roxbury Ins. Co., 3 Cushing, 263, at 267. Egan v. British, etc., Ins. Co., 193 Ill. 295; 61 N.E. 1081; Western Assurance Co. v. Southwestern Transportation Co., 68 F. 923; Chicago Ins. Co. v. Graham Transportation Co., 108 F. 271; P. & O. Steamship Co. v. Atlantic Mut. Ins. Co., 185 F. 172; Thompson v. Rockland Ins. Co., 45 Me. 116; Insurance Co. v. Dunham, 11 Wallace, 1. (7) Section 7023, R. S. 1909, violates section 53 of article 4 of the Missouri Constitution, prohibiting special laws and class legislation, and violates the Fourteenth Amendment of the Constitution of the United States, guaranteeing to all persons within the jurisdiction of the State the equal protection of the law, in that said section is inoperative in cities of a hundred thousand inhabitants or more. Woolley v. Mears, 226 Mo. 4850; State ex rel. v. C., B. & Q. Ry. Co., 195 Mo. 245; State v. Miksicek, 225 Mo. 574; State v. Walsh, 136 Mo. 406; State v. Julow, 129 Mo. 163; State ex rel. v. Railroad Co., 246 Mo. 514; Julian v. The Kansas City Star Co., 209 Mo. 102; Houston v. Pulitzer Publishing Co., 249 Mo. 337; State v. Bottling Co., 261 Mo. 306; Bessette v. The People, 193 Ill. 334, 347, 348, 350; Commonwealth v. Hana, 195 Mass. 266, 267; State v. Mayo, 15 N.D. 327; Jackson v. State, 117 S.W. 819, 820, 55 Texas Crim. Reports, 557; Malone v. Williams, 118 Tenn. 390; Janesville v. Carpenter, 77 Wisc. 302, 303; Sutton v. State, 96 Tenn. 707; People v. Fox, 247 Ill. 407; Ex parte Drexel, 147 Cal. 763; Simon v. Queen Ins. Co., 120 La. 488. The constitutional question here involved was properly raised in the court below. (Abs. p. 273.) Logan v. Field, 192 Mo. 66; Bank v. Bennett, 138 Mo. 500. (8) The policy in suit was void because the assured chartered the vessel without the knowledge or consent of the defendant company contrary to the provision in the policy. There is no evidence of any legal waiver and the court should have instructed the jury on this ground to have returned a verdict for the defendant. Instruction No. 5 (Abs. 255) on the alleged waiver of the forfeiture thereby incurred is erroneous among other reasons for not considering the non-waiver agreement. Tennessee Marine Ins. Co. v. Scott, 14 Mo. 39, star p. 46; Eddy v. Tennessee Marine Ins. Co., 21 Mo. 587; State ex rel. v. James Ellison et al., 269 Mo. 410; Northern Assurance Co. v. Grandview Building Assn., 183 U.S. 308; Lumber Underwriters v. Rief, 237 U.S. 605; Kyte v. Commercial Assurance Co., 144 Mass. 43; Insurance Co. v. Titus, 82 O. S. 161; Oatman v. Bankers Fire Association, 66 Ore. 388; Athens Mutal Ins. Co. v. Evans, 132 Ga. 703; Nickell v. The Phoenix Ins. Co., 144 Mo. 420; Springfield Laundry Co. v. Insurance Co., 151 Mo. 90; Thompson v. Traders Ins. Co., 169 Mo. 12; Keet, Rountree Dry Goods Co. v. Insurance Co., 100 Mo.App. 504; Fletcher v. Minneapolis F. & M. Ins. Co., 80 Minn. 152, 83 N.W. 29; Bakhaus v. Germania Fire Ins. Co., 176 F. 879; Gibson Electric Co. v. Insurance Co., 159 N.Y. 418; Matthie v. Globe Ins. Co., 174 N.Y. 489; Richards v. Continental Ins. Co., 83 Mich. 508, 47 N.W. 350; Richards on Insurance (3 Ed.), section 150. (9) The other insurance on the boat existing, at the time the present policy was written, without the knowledge or consent of the defendant company, under the terms of the policy avoided the policy. There was no valid notice given the defendant of such other insurance. The alleged conversation between Tinsley and Wilson at the time Wilson was inspecting the boat for the purpose of fixing its value, was not notice to the company. The sixth instruction given by the court to the effect that it was notice is erroneous in law for the reason that it was no part of Wilson's duty to report such conversation or to see how the policies were written, or to do anything except to put a value on the vessel. Hutchinson v. Western Ins. Co., 21 Mo. 97; Hayward v. National Ins. Co., 52 Mo. 181; 2 Mechem on Agency (2 Ed.), sec. 1831; Russell v. Cedar Rapids Ins. Co., 78 Ia. 216, 42 N.W. 654; Butler v. Michigan Mut. Life Ins. Co., 184 N.Y. 337; Mutual Life Ins. Co. v. Hilton-Green, 241 U.S. 613; Donham v. Hahn, 127 Mo. 439, 447; Columbia Paper Co. v. Fidelity & Casualty Co., 104 Mo.App. 157, 166. (10) The "fine print" speech of plaintiff's counsel, delivered in his closing argument to the jury, and the refusal of the court to sustain the defendant's objections to the conduct of counsel, were so damaging and prejudicial as to amount to reversible error. Barnes v. St. Joseph, 139 Mo.App. 548; Haake v. Milling Co., 168 Mo.App. 180; Torreyson v. Railroad, 144 Mo.App. 637; Sullivan v. Chicago, etc., Ry. Co., 119 Iowa 1264, 93 N.W. 367; Stauffer v. Railroad, 243 Mo. 324.

Fauntleroy, Cullen & Hay for respondent.

(1) The defendant's breach of warranty on account of other insurance and the chartering of the vessel is waived as a matter of law, and this issue was submitted to the jury under the proper instructions. Maxey v. Met. Str. Ry. Co., 95 Mo.App. 303; Lierheimer v. Ins. Co., 122 Mo.App 374; 2 Black on Rescission and Cancellation, sec. 547, and other cases cited under Point 1. (2) The Missouri statutes apply to fire policies on steamboats. Sec. 6995, and other Secs. of Missouri Statutes quoted in the Argument; Dierkes v. Ind. Mutual Ins. Co., 159...