Ward v. Concordia Fire Insurance Company of Milwaukee

• Decision Date: 06 November 1922
• Citation: 244 S.W. 959,211 Mo.App. 554
• Parties: HENRY A. WARD, Respondent, v. CONCORDIA FIRE INSURANCE COMPANY OF MILWAUKEE, Appellant
• Court: Kansas Court of Appeals

244 S.W. 959

211 Mo.App. 554

HENRY A. WARD, Respondent, v. CONCORDIA FIRE INSURANCE COMPANY OF MILWAUKEE, Appellant

Court of Appeals of Missouri, Kansas City

November 6, 1922

Appeal from the Circuit Court of Grundy County.--Hon. L. B. Woods Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

R. E Kavanaugh and A. G. Knight for respondent.

R. S Robertson for appellant.

OPINION

TRIMBLE, P. J.

This is a suit on a fire insurance policy issued by defendant to plaintiff on the 15th of November, 1917, covering a dwelling and a woodhouse appurtenant thereto, in Trenton, Missouri, whereby the former was insured for three years in the sum of $ 2500 and the latter for $ 200. The property burned on August 6, 1918. Defendant, on November 5, 1918, paid the full amount of the insurance on the furniture, to-wit, $ 500, and, refusing to pay the loss on the building, tendered to insured the full amount of the premiums ($ 25.20) paid for the insurance thereon. Plaintiff accepted the insurance paid as a total loss on the furniture, but refused the tender of the premiums paid for insurance on the buildings, and on July 22, 1919, brought this suit on the policy to recover the loss on them, alleging vexatious refusal to pay and asking damages and attorney's fee on that account.

The controversy relating to the insurance on the buildings arises principally over plaintiff's ownership of and title to the property, which is portrayed by a recital of the following facts:

The lot on which the buildings were located was, in the year 1895, owned by and stood in the name of Nathaniel Shanklin who, in that year, became insane and was confined in a hospital. While thus confined, the probate court, upon an inquiry had, rendered a judgment finding him insane and appointing a guardian for him. Under proceedings thereafter instituted by the guardian to sell real estate for the payment of debts, the lot was sold to one Berry on May 3, 1900, who on December 26, 1904, sold it to the plaintiff herein for $ 2600. The latter went into possession and occupied the dwelling until it was burned as heretofore stated.

In 1910, Shanklin recovered his sanity and thereafter brought several suits to set aside the various deeds made by the guardian on the ground that as Shanklin was never notified of the proceeding to adjudge him insane, the judgment and the deeds made by the guardian were void. Among these suits was one of Shanklin against plaintiff to recover the particular lot involved herein and another of Shanklin v. Boyce to recover certain other property. These suits were pending in the circuit court at the time the policy sued on herein was issued.

Thereafter the case of Shanklin v. Boyce was appealed to the Supreme Court, the case against plaintiff being continued pending a decision in the Boyce case. A decision was handed down in the latter case on June 4, 1918, (see Shanklin v. Boyce, 204 S.W. 187), and thereafter, on August 6, 1918, as heretofore stated, the property covered by the policy herein burned.

As hereinbefore said, suit was brought on the policy on July 22, 1919, and on November 14, 1919, trial was had resulting in a verdict for plaintiff in the sum of $ 2500 loss on the house with $ 150 interest thereon, $ 200 on the woodhouse with $ 12 interest and an attorney's fee of $ 250, aggregating $ 3112; said judgment was rendered for that amount.

From that judgment defendant appealed to this court, the case being argued and submitted at the October Term, 1920. In the meantime, the case of Shanklin v. Ward (plaintiff herein) had been heard and decided by the circuit court and appealed to the Supreme Court by Shanklin. It being manifest that the nature and extent of Ward's interest in the property would be determined by the Supreme Court in that case and that such would have an important bearing on the question raised in this insurance suit, this court laid the present case aside until the case of Shanklin v. Ward, should be finally determined in the Supreme Court, which was done on December 19, 1921. [See Shanklin v. Ward, 236 S.W. 64.]

The policy contained the usual provision that if the interest of the assured be or become "other than the entire, unconditional and sole ownership of the property" or "if the buildings insured be on ground not owned by the assured in fee simple" the policy should be void "unless otherwise provided for by agreement endorsed thereon," and that no agent of the Company had authority to waive any of the above conditions. The defendant pleaded these provisions, and, after setting up the facts showing that the guardian's deed through which plaintiff claimed title was void, asserted that plaintiff was not the owner in fee of the property and that the policy was void for that reason.

The reply set up the insanity of Shanklin, the appointment of a guardian, the indebtedness of Shanklin, the order of sale to pay debts, the purchase by Berry at such sale, the guardian's deed to him and the conveyance by Berry to plaintiff for a consideration of $ 2600 which plaintiff, in good faith and without notice of any defect in said proceedings, paid to Berry; that the money (amount not stated) paid by Berry to said guardian was used by him for Shanklin's benefit and the payment of his debts; that plaintiff paid the purchase price of $ 2600 in good faith to Berry believing in good faith that he was getting the fee simple title to the lot; that, in good faith and relying upon his apparent fee simple title to the land, plaintiff expended large sums of money, time and labor in making permanent and valuable improvements on said property amounting to about $ 11,000; that plaintiff's grantor, Berry, expended $ 500 in permanent improvements on the property; that plaintiff and his grantor paid, since the year 1900, the sum of $ 500 in taxes thereon; and that plaintiff, believing in good faith that he had received from Berry a good title, went into and continued in possession of the property up to the time he took out the policy in question as well as up to and including the time of the fire.

The reply further pleaded that the agents of defendant at Trenton who issued and countersigned the policy and collected the premiums had full knowledge of all the facts relating to the imperfection in plaintiff's title and of all the facts pleaded by defendant to show want of title in plaintiff and that defendant was estopped to plead want of title in plaintiff or any defect therein.

It is well settled in this State that agents of insurance companies having authority to countersign, issue and deliver policies and collect premiums thereon may waive stipulations therein which purport to be essential to their validity, even though such policies contain a further stipulation that no agent has authority to waive any of the conditions or stipulations of the policy. And when this is done the company is estopped from claiming a forfeiture on account of any such waived provisions. [Springfield Steam Laundry Co. v Traders' Ins. Co., 151 Mo. 90, 52 S.W. 238; Thompson v. Traders' Ins. Co., 169 Mo. 12, 68 S.W. 889; United Zinc Co. v. General Accident, etc., Assurance Corp., Ltd., 144 Mo.App. 380, 388, 128 S.W. 836; Manning v. Connecticut Fire Ins. Co., 176 Mo.App. 678, 159 S.W. 750; Parsons v. Knoxville Fire Ins. Co., 132 Mo. 583, 31 S.W. 117.] There is abundant evidence in the case that said agents were fully aware of the defect in plaintiff's title and of the claim Shanklin was asserting to the property by reason thereof. The suits by Shanklin to recover his property were then pending in the circuit court at Trenton and the matter was fully discussed and talked over by plaintiff with such agents. The facts were fully known and no misrepresentation or fraudulent statements were made by insured in obtaining the insurance, and hence the provision that the policy should be void if the interest of insured should be other than the sole and unconditional ownership in fee simple was waived, and defendant is estopped to enforce a forfeiture on that ground. The facts supporting such alleged waiver and estoppel were submitted to the jury, and it, by its verdict, found that the same existed. Indeed, there was no contention that said agents did not know the facts as they existed. But, even if such waiver and consequent estoppel be established, it does not seem to us to follow therefrom that all questions as to whether plaintiff had an insurable interest in the property is dispensed with or drops out of the case. Waiver may estop the defendant from declaring the policy void on the ground that the title or interest of...