Stavinow v. Home Insurance , 43 Mo. App. 513 ( 1891 )

Ellison, J.

This action is on an insurance policy. Defendant lost in the trial court, and appeals. The policy provides that any additional insurance shall be indorsed in writing on the policy, otherwise the policy would be void. Plaintiff admits other insurance, and relies upon a' waiver of the condition of the policy. Defendant contends that the pleadings are not such as to admit evidence of waiver. The petition makes no reference to other insurance. The answer contains the following allegation: “Defendant avers that at the time said policy was executed and delivered to plaintiff, the said plaintiff then had insurance on said property to the amount of $500 in the Girard Eire Insurance Company, which fact plaintiff concealed from defendant, and consent of defendant therefor was never at any time given or written on the policy herein sued on, by reason whereof defendant says plaintiff is not entitled to recover. Further answering, defendant denies each and every allegation, matter, fact and tiling in said petition contained not hereinbefore expressly admitted.” To this answer plaintiff .tiled a general denial. It will be noticed that the answer set up as new matter, not alone, the other insurance, but that plaintiff had the other insurance without defendant’s consent, and never gave him notice, and concealed the fact from defendant. This tendered an issue of these allegations which plaintiff accepted by his general denial; thus putting the matter at issue for trial. Stivers v. Horne, 62 Mo. 473; Garth v. Caldwell, 72 Mo. 629.

The provisions of the policy against further insurance and against a waiver unless each be indorsed on the policy, can be waived by defendant’s agent. Bernard v. Ins. Co., 38 Mo. App. 106. And the evidence in this case of waiver was sufficient to justify its being submitted to the jury. In this connection objection is made to a conversation going to show a waiver, which occurred between the plaintiff and the defendant’s errand boy, who delivered the policy. This conversation clearly should not have been admitted and would have justified a reversal, but for the fact that the court excluded the testimony by an instruction asked by defendant.

An offer of settlement was likewise received, in evidence against defendant’s objection that it was an offer of compromise ; but it was distinctly admitted only on the question of waiver, and as such it was competent.

The criticism of plaintiff’s instruction, in stating that, unless defendant did not waive such violation as stated in “ other instructions,” is founded on the assertion that no other instructions defined or referred to a waiver. ' It is true a waiver is not expressly defined or mentioned in other instructions, yet defendant’s instructions. embody that which amounts to a waiver and would unquestionably be understood as embodying what is referred to in the instruction of which complaint is made. •

Plaintiff, in giving in his testimony as to the articles damaged or lost by the fire, used a memorandum or list, which he took three days after the fire, but before anything had been disturbed or removed. The list contained a large number of articles. We think he was rightly permitted to use'such list as a memorandum from which to refresh his memory. Wernwag v. Railroad, 20 Mo. App. 473; Dungan v. Mahoney, 11 Allen, 572.

We have considered the other objections made by defendant, but regard them as insufficient to justify a reversal, and affirm the judgment.

All concur.