Wright v. American Ins. Co.

• Decision Date: 31 August 1926
• Docket Number: No. 3852.,3852.
• Citation: 287 S.W. 488
• Parties: WRIGHT v. AMERICAN INS. CO. OF NEWARK, N. J.
• Court: Missouri Court of Appeals

287 S.W. 488

WRIGHT v. AMERICAN INS. CO. OF NEWARK, N. J.

No. 3852.

Springfield Court of Appeals. Missouri.

August 31, 1926.

Rehearing Denied October 16, 1926.

Appeal from Circuit Court, Barton County; B. G. Thurman, Judge.

Action by Ed. Wright against the American Insurance Company of Newark, N. J. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Martin & Martin, of Lamar, for appellant.

H. W. Timmonds, of Lamar, and Schmook & Sturgis, of Springfield, for respondent.

BRADLEY, J.

This is an action on a fire insurance policy. By direction of the court the verdict and judgment went for defendant, and plaintiff appealed.

The petition charges that defendant by its policy insured plaintiff's wheat against loss or damage by fire or lightning from July 6 to October 6, 1922, to the amount of $1,000; that said policy was never delivered to plaintiff, but that defendant issued and delivered to plaintiff the following certificate:

                          "Grain on Farm Certificate
                "Missouri                (Deliver to Assured)
                        "American Insurance Company of
                              Newark, New Jersey
                       "Western Department, Rockford, Ill
                "Amount $1,000.                  No. _____
                "Rate 40
                "Premium $4.00
                "Golden City, Mo., Agency, July 6, 1922.
                

"This certifies that Ed. Wright is insured by this company against loss or damage by fire and lightning under and subject to the conditions of open policy No. Gr. 1008 to the amount of one thousand dollars for the term of three months, from July 6, 1922 to Oct. 6, 1922, at 12 o'clock, noon, on grain and seeds of all kinds (including sacks and bags) cut or uncut (but not including straw or stubble) threshed or unthreshed, shelled or unshelled, in sacks, shocks, stacks, and ricks on cultivated land, in dwelling house, barns, bins, tanks, granaries and cribs all while situated as follows:

"$1,000. on _____ ¼ section 13, township 32, range 29, county of Barton, state of Mo.

"Permission granted to use steam or gasoline as motive power for threshing grain.

"Loss if any to be adjusted with the assured above named, and payableto Ed. Wright.

                                  "W. H. Pemberton, Agent."
                

It is further alleged that the insured wheat was destroyed by fire August 29, 1922, while said policy was in force, and that all conditions required were by plaintiff duly performed.

Defendant answered by a general denial and as follows:

"For further answer and defense to the plaintiff's petition, the defendant states that on the 6th day of July, 1922, it issued to the plaintiff its certificate insuring the plaintiff against loss or damage by fire and lightning, under and subject to the conditions of open policy No. Gr. 1008 to the amount of one thousand and no/100 dollars ($1,000.00) for the term of three (3) months from July 6, 1922, on grain and seeds of all kinds while situated on ¼ section 13, town ship 32, range 29, Barton county, Mo. Defendant further states that some of the conditions of open policy No. Gr. 1008 referred to in such certificate are as follows: `This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein. This entire policy, unless otherwise provided by agreement ihdorsed hereon or added hereto, shall be void if the subject of insurance be personal property and be or become incumbered by a chattel mortgage.'

"Defendant further says that the plaintiff, Ed. Wright, at the time of the issuance of such certificate of insurance, falsely stated and represented to the defendant's agent that the grain so insured was not mortgaged, when in fact such grain was at that time conveyed by a chattel mortgage of the plaintiff to the Citizens' National Bank of Golden City, Mo., by chattel mortgage from plaintiff to Laverne Woody and by a chattel mortgage of the plaintiff to Farmers' Grain & Supply Company; that such facts were material to the defendant, and if the plaintiff had disclosed to the defendant such facts and not misrepresented such facts to the defendant, the defendant would not have issued said certificate of insurance covering the grain of the plaintiff. Defendant further states that there was at no time an agreement indorsed on said policy or said certificate agreeing to such chattel mortgage, so that by the conditions of said policy, said policy and certificate and said insurance was void and of no force and effect.

"Wherefore, defendant having fully answered plaintiff's petition herein filed, prays to be discharged with its costs."

In reply plaintiff admitted that the certificate issued and delivered to him was by its terms subject to the conditions of open policy No. Gr. 1008, and admitted that the Citizens' National Bank of Golden City held a mortgage on the insured wheat when the certificate was issued and delivered, and that consent to the mortgage was not indorsed on the certificate delivered. Plaintiff further alleges in the reply that he did not know the provisions of open policy No. Gr. 1008; that he had never had said policy in his possession and had never seen the same. Plaintiff denied generally other new matter pleaded in the answer. Plaintiff contends that the court erred in directing a verdict for defendant. This contention is based upon two grounds, viz: (1) That under the facts the mortgage condition in the policy will not defeat recovery ; and (2) that the premium was not tendered back, and that defendant therefore cannot invoke the condition relied upon to defeat recovery.

The facts are these: July 6, 1922, plaintiff was stacking wheat for his father near Golden City, Mo. W. H. Pemberton, of Golden City, defendant's agent, drove out to the farm where plaintiff was at work, solicited and wrote insurance on plaintiff's father's and brother's wheat, and there delivered to the father and brother a certificate of insurance the same in form as was later delivered to plaintiff. After delivering to the father and brother their certificates, the agent addressed plaintiff and said: "Ed., do you want some insurance?" Plaintiff said that he did, and the amount agreed upon was $1,000. There were no inquiries made by the agent as to incumbrances. Plaintiff could not give the description of the land on which his wheat was located, and the agent said he would go back to town and look that up and send the policy gut next morning. This the agent did, and plaintiff next morning received from his father's mail box the certificate set out above.

Plaintiff testified:

"I answered all questions that the agent, Mr. Pemberton, asked me. He never did ask me whether there was any mortgage on the grain, and I did not know it was necessary to tell him about any mortgage. If he had asked, I sure would have told him. Exhibit A (the certificate) is what I thought was the policy and is all I ever did get."

The policy proper was introduced In evidence, and it contains a condition rendering it void if the insured property "be or become incumbered by a chattel mortgage." The condition is as pleaded in defendant's answer set out above.

The facts are not disputed. Defendant's agent made no inquiry as to incumbrances plaintiff signed no application. He was merely asked if he wanted...