Wilson v. Farmers' Mut. Fire & Lightning Ins Co.

• Decision Date: 01 May 1922
• Docket Number: No. 14353.,14353.
• Citation: Wilson v. Farmers' Mut. Fire & Lightning Ins Co., 240 S.W. 484 (Mo. App. 1922)
• Court: Missouri Court of Appeals
• Parties: WILSON et al. v. FARMERS' MUT. FIRE & LIGHTNING INS. CO. OF BATES COUNTY, MO.

240 S.W. 484

WILSON et al. v. FARMERS' MUT. FIRE & LIGHTNING INS. CO. OF BATES COUNTY, MO.

No. 14353.

Kansas City Court of Appeals. Missouri.

May 1, 1922.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

"Not to be officially published."

Suit by J. A. Wilson and another against the Farmers' Mutual Fire & Lightning Insurance Company of Bates County, Mo. From a judgment for plaintiffs, defendant appeals. Affirmed.

De Armond & Maxey, of Butler, for appellant.

T. W. Silvers, of Butler, and Parks & Son, of Clinton, for respondents.

BLAND, J.

This is a suit on a fire insurance policy, dated November 25, 1918, seeking to recover the sum of $1,000 for the destruction by tire of a dwelling and a smokehouse belonging to plaintiff Wilson, title to which was in him, and on which there was a deed of trust given by him and his wife to the Deming Investment. Company to secure the payment of $4,000, which indebtedness has been assigned to the plaintiff, the National Life Insurance Company. There was a trial before the court without the aid of a jury, resulting in a judgment in favor of plaintiff, and defendant has appealed.

Defendant is a farmers' mutual fire insurance company, organized under the laws of the state of Missouri, with its principal office in Bates county, Mo. The policy was issued to Wilson by the secretary of the company, and at the time of its issuance Wilson informed the secretary that he had a loan on the property, which required his taking out the insurance. Wilson notified the secretary that he was securing the insurance for the benefit of the Deming Investment Company, which held the lien on the property, that it was necessary for the policy to be assigned to that company, and that he wanted a mortgage clause inserted in the policy. The secretary agreed to this, and attached to the policy when he issued it a mortgage clause, which made the loss, if any, "payable to the Deming Investment Company, or assigns, as mortgagee as interest may appear, and this insurance, as to the interest of the mortgagee or assigns only therein, shall not be invalidated or impaired by any act, omission or neglect of the mortgagor or owner."

On July 28, 1919, Wilson took out a policy in the sum of $1,000, $500 of which was upon property covered by defendant's policy. On October 12, 1919, the property insured was destroyed by fire. After the fire and proof of loss was furnished to the company, it refused to pay. The defense pleaded in the answer is the provision of the application which read:

"`I further agree and warrant that if I shall take other fire and lightning insurance on any of the property herein described during the term of insurance under this application without first securing the written consent of this company for such additional insurance, then all insurance under this application shall become null and void.'"

That a policy was subsequently taken out by another insurance company without securing the written consent of the defendant; that defendant did not authorize or agree that the insurance as to the interest of the mortgagee or assigns should not be invalidated or impaired by any act of the mortgagee or owner or the property insured. Defendant now insists that the policy was void for the reason that the additional insurance was taken out by the insured without procuring the consent of the insurer, that the secretary had no authority to execute the mortgage clause attached to the policy, and that the insurer is not bound thereby. In order for the defense on the ground of subsequent insurance to be a good one, it is necessary that defendant show that the terms of the application covering matter of other insurance were a part of the contract of insurance. The only reference to the application in the policy was that contained after the description of the property insured. The policy does not describe the premises upon which the dwelling and smokehouse were situated. It merely states that there was a certain amount of insurance on the dwelling house and other property, the amount of which was set out opposite each item insured. Then appears...