Woolfolk v. Home Ins. Co.

• Decision Date: 20 April 1918
• Docket Number: No. 2200.,2200.
• Citation: 202 S.W. 627
• Parties: WOOLFOLK v. HOME INS. CO.
• Court: Missouri Court of Appeals

202 S.W. 627

WOOLFOLK v. HOME INS. CO.

No. 2200.

Springfield Court of Appeals. Missouri.

April 20, 1918.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Action by Katie Woolfolk against the Home Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Fyke & Snider, of Kansas City, for appellant. Lamar & Lamar, of Houston, for respondent.

FARRINGTON, J.

The appellant is a foreign insurance company, having complied with the laws of Missouri, against whom a judgment in favor of the respondent was rendered in the circuit court for the full amount of a fire policy, covering a barn and contents, which were completely destroyed by fire. The policy was for five years, from September 29, 1915, to September 29, 1920, the whole premium being $80, which was to be paid as follows: $16 when the policy was delivered, which was done, and the balance, $16 and interest each succeeding year on October 1st, evidenced by installment notes. The fire occurred October 20, 1916. The installment due October 1, 1916, had not been paid. Appellant pleaded as a defense the following provision contained in the policy sued on:

"This company shall not be liable for any loss or damage that may occur to the property herein insured while any installment of the installment note given for the premium on this policy remains past due and unpaid, or while any single payment premium note (acknowledged as cash or otherwise) given for the whole or any portion of the premium remains past due and unpaid. Payment of notes, or installments thereof, must be made to the Home Insurance Company at its Western Farm Department in Chicago, Ill., or to a person, or persons, specifically authorized to collect the same for said company."

Respondent asserts that the appellant is estopped to forfeit the policy under this provision on account of the following facts, which she testified to and which are also admitted by the appellant's agent who wrote and delivered the policy: When the policy was delivered plaintiff states she asked about being notified when the installments would fall due, and that the agent assured her at that time that she would be given notice of the maturity of the payments. The agent gave this testimony:

"I told her that she would get notice from the company in due time before the note or the installment was due."

It is admitted that no such notice was ever given or received. In determining the character of the agent's authority we note that the appellant is a foreign insurance company, its agent taking the application, delivering the policy, collecting the first year's premium, and, as the yearly installments fell due, assisting the company in making collection. He was advised by the company of those who were delinquent ten days, and was furnished a blank form on which he was to notify customers of the company of their delinquency. He received a delinquent list showing that respondent had not paid her October 1, 1916, installment, some ten days prior to the fire. He did not send her the notice which he was supposed to give when this delinquent list was sent to him. He explains that on receiving the delinquent lists he would look over them, and where the parties were good that were delinquent, and where he had no doubt but what they would pay their installments he did not bother with them, but where he considered payment doubtful he notified them of their delinquency and got after the payment. The testimony of the agent shows that he told plaintiff she would get notice of the maturity of her installments before they were due, at the time he delivered the policy and collected the first premium. There is nothing in the evidence before us showing that the powers of the agent to agree that notice of maturity of installments would be given before they became due were limited in any way, or that he had no power or authority to enter into such agreement with the assured, nor is there anything in the written contract which is altered or contradicted by such oral agreement to give notice. The whole effect of the written contract was that, if respondent paid certain premiums at certain times and a loss occurred, the appellant would pay the amount of the loss under the policy. The contract testified to by both plaintiff and the agent as to the giving of notice before the installments fell due in no wise alters or contradicts the written instrument. In fact, the effect of the oral agreement was to assist and make certain the carrying out of the written contract of...