Witte v. Western Mut. Fire Ins. Co.

• Decision Date: 14 February 1876
• Citation: 1 Mo.App. 188
• Parties: FREDERICK A. WITTE, Respondent, v. WESTERN MUTUAL FIRE INSURANCE COMPANY, Appellant.
• Court: Missouri Court of Appeals

1 Mo.App. 188

FREDERICK A. WITTE, Respondent,

v.WESTERN MUTUAL FIRE INSURANCE COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 14, 1876.

1. When a building containing property insured against fire is used for purposes prohibited by the terms of the policy, and the insurance company, upon being notified thereof, declines to fix an increased rate of premium, and afterwards collects its regular assessments on the policy, treating it as a subsisting contract, the condition of forfeiture is waived, and cannot be set up against an action on the policy after the burning of the insured property.

2. When assessments have been collected under such circumstances, all presumptions as to date are, in the absence of proof, against the party collecting. The onus is on the insurer to show that the collections were upon assessments made before the alleged act of forfeiture.

APPEAL from St. Louis Circuit Court.

Affirmed, with 10 per cent. damages.

A. R. Taylor, for appellant, cited: St. Louis Fire & Marine Ins. Co. v. Boeckler, 19 Mo. 135.

Edward C. Kehr, for respondent, cited: Reid v. Piedmont & Arlington Life Ins. Co., 58 Mo. 421; Roussin v. St. Louis Perpetual Ins. Co., 15 Mo. 244; Hannibal & St. Jo. R. R. Co. v. Moore, 37 Mo. 338; Knipper v. Bechtner, 32 Mo. 255; Gillett v. Matthews, 45 Mo. 307; Clarke v. Hammerle, 27 Mo. 55; Mead v. Brotherton, 30 Mo. 201; Sawyer v. Hannibal & St. Jo. R. R. Co., 37 Mo. 240; Fitzgerald v. Hayward, 50 Mo. 516; Hayward v. National Ins. Co., 52 Mo. 181-196; Pelkington v. National Ins. Co., 55 Mo. 172; Horwitz v. Equitable Ins. Co., 40 Mo. 557; Franklin v. Atlantic Ins. Co., 42 Mo. 460; Combs v. Hannibal Ins. Co., 43 Mo. 151; Merchants and Manufacturers' Ins. Co. v. Curran, 45 Mo. 142; Sims v. State Ins. Co. of Hannibal, 47 Mo. 54; Northrup v. Mississippi Valley Ins. Co., 47 Mo. 435; Froehlich v. Atlas Life Ins. Co., 406; Hayward v. National Ins. Co., 52 Mo. 181 (195-6); Bonnell v. U. S. Express Co., 45 Mo. 422; Kelly v. U. S. Express Co., 45 Mo. 428; Banister v. Henn, 45 Mo. 567; Shackley v. North Missouri C. & M. Co., 50 Mo. 410; Calhoun v. Crawford, 50 Mo. 458.

LEWIS, J., delivered the opinion of the court.

Plaintiff was assignee of a policy of insurance issued by defendant to Herman Witte, on a stock of hames and material, with engine, boiler, and machinery, in a building occupied for the purpose of manufacturing saddle-trees, harness, etc. The premises having been destroyed by fire, suit was brought to recover the insurance money. At special term the plaintiff obtained judgment for $1,961.75, which judgment was affirmed in general term. A condition in the policy provided that if the premises should be appropriated or used for the purpose of “carrying on or exercising therein any trade, business, or vocation denominated hazardous, or extra hazardous, or specified in the memorandum of special rates,” etc., or for the purpose of keeping or storing therein any of the articles so denominated or specified, unless agreed to by the defendant, in writing, indorsed upon the policy, then the policy should cease and be of no force or effect. The testimony tended to show that the insured, during the continuance of the policy, used a part of the building for the manufacturing and storing of furniture--an occupation within the denomination “hazardous,” and, therefore, violative of the terms of the policy. Also, that on more than one occasion he notified defendant's secretary of this increase of the risk, asking him to fix the proper increased rate of premium accordingly; that the secretary answered, in effect, that “it was all right,” and no additional premium was necessary; that, after this notification, one or two assessments on the premium note were paid to, and received by, the secretary without objection.

The only alleged error to which our attention is called by the appellant was in the giving of the following instruction to the jury, viz.:

“Although the jury may find that Herman Witte did, in the spring of 1871, commence to manufacture furniture in the building containing the property insured by this policy, yet if the jury find that he shortly thereafter gave or caused notice of the fact to be given to the defendant, and...