Wolpers v. Globe & Rutgers Fire Ins. Co.

• Citation: 61 S.W.2d 224
• Decision Date: 20 June 1933
• Docket Number: No. 22452.,22452.
• Parties: WOLPERS v. GLOBE & RUTGERS FIRE INS. CO.
• Court: Court of Appeal of Missouri (US)

61 S.W.2d 224

WOLPERS v. GLOBE & RUTGERS FIRE INS. CO.

No. 22452.

St. Louis Court of Appeals. Missouri.

June 20, 1933.

Appeal from Cape Girardeau Court of Common Pleas; Oscar A. Knehans, Judge.

"Not to be published in State Reports."

Action by C. M. Wolpers against the Globe & Rutgers Fire Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Greensfelder & Grand, of St. Louis, and Oliver & Oliver, of Cape Girardeau (Howard V. Campbell, of St. Louis, of counsel), for appellant.

Francis M. Kinder, of Poplar Bluff, for respondent.

SUTTON, Commissioner.

This is an action on a fire insurance policy issued to plaintiff by defendant on September 29, 1930, in the sum of $1,200, covering on household and personal effects owned by plaintiff, located and contained in his one-story frame dwelling house, situate at 555 North Tenth street, Poplar Bluff, Mo.

The action was originally brought in the circuit court of Butler county, whence it went on change of venue to the Cape Girardeau court of common pleas.

The trial, with a jury, resulted in a judgment in favor of plaintiff for $1,007. Defendant appeals.

The policy provides as follows: "This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy; * * * or if the subject of insurance be personal property and be or become encumbered by a chattel mortgage."

The defense made below was a claimed forfeiture under these provisions of the policy, and the same defense is insisted upon here.

The property insured was destroyed by fire on June 21, 1931. The loss was total. There was no salvage of any substantial value. It was shown without dispute in the record that there was no depreciation in the value of the insured property after the issuance of the policy until the fire occurred. In fact, it appears that the market value of used furniture had appreciated.

The evidence shows that at the time of the issuance of the policy there were two chattel mortgages against certain articles of the insured property, to wit: One in favor of the Dalton-Baldwin Furniture Company for $162.19, covering one Crosley radio, and another in favor of the Automobile Discount Company for $200, covering certain other articles of furniture. The mortgage on the radio was given on February 26, 1930. It was made payable in weekly installments of $3.65. The mortgage on the other articles of furniture was given on September 29, 1930, made payable in monthly installments of $10 each. The amounts remaining due on these mortgages at the time of the fire the evidence does not show.

There was other insurance on the radio, for $60, procured by the mortgagee. He paid a premium of $1 for this insurance, and charged it to plaintiff's account. It was made a part of the carrying charges, and did not appear on the account as a premium. The insurance was made payable to plaintiff and the mortgagee as their interests might appear. However, the amount of the policy was less than the mortgage indebtedness at the time of the fire, and the amount of the insurance, $60, was paid by the insurer to the mortgagee, who credited on the mortgage indebtedness the amount so paid. This insurance on the radio was procured by the mortgagee for its own protection. It at no time exceeded the mortgagee's interest. The mortgagee did not discuss the insurance with plaintiff at any time, and plaintiff had no knowledge of its existence prior to the fire. Such insurance therefore does not operate to void or vitiate the policy in suit. 26 C. J. p. 188, § 229.

The evidence shows without dispute in the record that the defendant's agent, who countersigned and issued the policy in suit, had full knowledge of the existence of the chattel mortgages at the time he issued the policy. In fact, he prepared the mortgage given to the Automobile Discount Company at the time he issued the policy, and arranged the loan for which the mortgage was given, in his capacity as agent for the Automobile Discount Company. It is not disputed that he was the agent of the defendant company, with plenary power to sell insurance and collect premiums thereon, and to prepare, countersign, issue, and deliver the policies therefor. In other words, he was the alter ego of the company, at Poplar Bluff, where he operated. Knowledge on his part of the existence of these mortgages must therefore be imputed to the company.

Moreover, defendant's adjuster went to the scene of the fire shortly after it occurred, interviewed the plaintiff, and made full investigation of the loss. He made no objection to the payment of the loss on account of the mortgages or the insurance procured by the mortgagee on the radio. Nevertheless, defendant did not pay the loss, nor return or tender return of the premiums paid by plaintiff until long after this suit was instituted, and had gone on change of venue to the Cape Girardeau court of common pleas, when the defendant filed its answer, nearly six months after the fire. There is nothing in the answer, nor in the evidence, to excuse or explain this long delay in tendering the return of the premium.

Obviously, under this state of facts, defendant is estopped to insist upon a forfeiture of the policy in suit on account of either the mortgages or the other insurance. Turner v. Providence-Washington Ins. Co., 86 Mo. App. 387; McCollum v. Liverpool, London & Globe Ins. Co., 67 Mo. App. 66; Shutts v. Milwaukee Mechanics' Ins. Co., 159 Mo. App. 436, 141 S. W. 15; Williams v. Connecticut Fire Ins. Co. (Mo. App.) 47 S.W.(2d) 207; Franklin v. Atlantic Fire Ins. Co., 42 Mo. 456; Breckinridge v. American Central Ins. Co., 87 Mo. 62; Rosencrans v. North American Ins. Co., 66 Mo. App. 352; Ward v. Concordia Fire Ins. Co., 211 Mo. App. 554, 244 S. W. 959; Harland v. Liverpool & London & Globe Ins. Co., 192 Mo. App. 198, 180 S. W. 998; Kern v. American Legion of Honor, 167 Mo. 471, 67 S. W. 252.

It follows, of course, that defendant's assignment of error upon the refusal of its instruction in the nature of a demurrer to the evidence is untenable.

Defendant assigns error here for the refusal of the court to permit him to show on cross-examination of the plaintiff the cost of certain pieces of furniture when he purchased the same a number of years prior to the fire. We are unable to see how the cost was material, since, under the valued policy law, section 5829, R. S. 1929 (Mo. St. Ann. § 5829), defendant is not permitted to deny that the property insured was worth at the time of the issuing of the policy the full amount insured, and the only issue for the jury was the amount of depreciation, if any, and the amount of plaintiff's recovery must be determined on that basis.

But defendant urges that plaintiff was not entitled to recover in this action for the whole property insured and destroyed by the fire, for the reason that the policy covers...