Williams v. Connecticut Fire Ins. Co.
| Decision Date | 07 March 1932 |
| Docket Number | 4981 |
| Citation | 47 S.W.2d 207 |
| Parties | WILLIAMS et al. v. CONNECTICUT FIRE INS. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Butler County; R. I. Cope, Judge.
“ Not to be officially published.”
Suit by Elizabeth R. Williams and another against the Connecticut Fire Insurance Company. From a judgment in favor of plaintiffs, defendant appeals.
Reversed and remanded.
Henson & Woody, of Poplar Bluff, for appellant.
Francis M. Kinder, of Poplar Bluff, for respondents.
This is a suit on a fire insurance policy issued by defendant on November 20, 1929, to Elizabeth R. Williams, plaintiff, in the sum of $2,000, covering certain household goods located in a dwelling house in the city of Poplar Bluff, Mo. While this policy was in force the goods were destroyed by a fire, which occurred on the 17th day of August, 1930. The petition was in conventional form. The answer alleged, among other things, the following:
No fraud was charged. The reply was a general denial. The trial was to a jury and resulted in a verdict and judgment for plaintiffs in the sum of $1,000, from which judgment defendant has appealed.
It is first assigned as error that the court failed to give defendant’s instruction in the nature of a demurrer to the evidence. Plaintiffs’ evidence, which must be accepted as true in considering the demurrer, shows the following state of facts: It was shown that plaintiff Elizabeth Rickman Williams paid a premium of $12.50 to defendant and in November, 1929, the policy in suit was duly issued to her; that in August, 1930, she sustained a fire loss to the goods insured, the damage to various articles being particularly described in her testimony. Prior to this time, in November, 1928, defendant had issued its policy to plaintiff insuring this same property, and at that time there was a mortgage on said property to the Overbey Furniture Company. Defendant had notice of this mortgage and inserted a loss payable clause in this 1928 policy. That mortgage was paid in March, 1929, out of funds obtained from a new mortgage on this same property, executed in February, 1929, in favor of the Automobile Discount Corporation, of St. Louis, for the sum of $165. At about this same time plaintiff increased the insurance with defendant on her property from $1,000 to $2,000, and informed the local agent of the defendant company that she had borrowed money from said Automobile Discount Corporation. No loss payable clause was, however, inserted in the policy. After the policy sued on was issued in November, 1929, as aforesaid, which likewise contained no loss payable clause, plaintiff paid off the $165 mortgage but increased her indebtedness to the Automobile Discount Corporation and gave a new mortgage on the property for the sum of $280 in January, 1930. It is admitted she gave no notice whatever of this mortgage, either to defendant or its said local agent, and of course no loss payable clause was attached to the policy. It was in this condition when the fire occurred in which plaintiff sustained the loss to the property insured. There was evidence that defendant failed to return or tender any part of the premium paid. Defendant had no notice of the mortgage until after the fire.
The policy contained two provisions now relied on by defendant to defeat this action. They are as follows: Such provisions in insurance policies are valid and have been uniformly upheld in this state when a breach thereof has occurred. Boley v. Bankers’ & Shippers’ Insurance Co. (Mo. App.) 23 S.W.2d 1095; Day v. National Fire Ins. Co., 216 Mo.App. 279, 264 S.W. 467; Swinney v. Connecticut Fire Ins. Co. (Mo. App.) 8 S.W.2d 1090; 26 C. J. 243, § 307.
Plaintiffs contend, however, that defendant waived the right to avoid liability by retaining premiums paid after loss was sustained by plaintiff and that defendant is estopped from avoiding the policy on that ground.
Defendant replies to this argument by stating that an insurer does not waive its right to avoid a policy by retaining the premium, except in those cases in which it is claimed the policy is void ab initio, and that since the defense alleged in this case is based upon the proposition that the insured mortgaged the property after the policy was issued, in violation of the conditions thereof, the rule as to waiver does not apply. In support of this theory defendant cites Thomas v. American Automobile Underwriters’ Agency (Mo. App.) 5 S.W.2d 660, Meyer Dairy Co. v. Connecticut Fire Ins. Co. (Mo. App.) 287 S.W. 663.
There is language used in each of the cases last cited which would seem to indicate that the distinction made by defendant is recognized by our courts. But recent rulings of the Supreme Court and Courts of Appeal are contrary to that view. In Luthy v. Northwestern National Insurance Co., 224 Mo.App. 371, 20 S.W.2d 299, 300, suit was on a fire insurance policy. The policy contained a provision that should the property be removed from its then location without the written consent of the insurer, "the policy shall be void." The evidence showed the property was removed after the issuance of the policy, without the consent of insurer, and thereafter the loss occurred. Defendant sought to avoid the policy on the ground that the removal provision of the policy had been breached. Plaintiff claimed the breach was waived by retention of the premium. On that phase of the case the Kansas City Court of Appeals held: ...
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