Cromwell v. Phœnix Insurance , 47 Mo. App. 109 ( 1891 )

Gill, J.

On January 9, 1890, plaintiff Cromwell had a policy of insurance of $500 executed by the defendant Phcenix Insurance Gompany on a farmhouse near Columbia in Boone county. Said policy expired by its terms, November 10, 1891. On said January 9, plaintiff took out another and further policy in the like sum of $500 in the Orient Insurance Company. On March 24, 1890, the building was destroyed by fire. In proper time-notice of loss was given and due proofs made, but defendant refused to pay on the policy, and on the sole ground of other insurance, without notice to and consent of defendant. In the trial of the cause, jury was waived, the issues were submitted to the court, and judgment entered for plaintiff, from which the insurance company has appealed.

The condition of the policy relied upon in defense provides that, 11 if the assured shall have, or shall hereafter accept, any other insurance on the above-mentioned property, whether valid or not, * * * then this policy shall be null and void.” It is further provided that a waiver of this and other conditions can only be in writing, etc. Plaintiff made no proof of consent in writing by defendant, nor waiver thereof in writing, but relied on a waiver by conduct of defendant’s officers and agents. Evidence in that direction tended to establish, in effect, the following: When Gentry, the agent of the Orient, wrote the additional policy for the plaintiff, he, with Cromwell, went to defendant’s agent at Columbia and requested an indorsement of consent to the additional insurance. Defendant’ s agent declined to make the indorsement, for the reason that he did not write the policy, but suggested to Gentry and the plaintiff that he, Gentry, write to T. R. Burch, defendant’s general agent at Chicago; that it would be all right, etc. Thereupon Gentry, by the request of and for the plaintiff, wrote the letter to said general agent at Chicago, as follows

“Columbia, Mo., January 9, 1890.

“ T. R. Burch, General Agent, .Bhamx Insurance Company, Chicago, Illinois:

“ Dear Sir.- — Mr. N. T. Cromwell of Boone county, Missouri, whose frame dwelling is insured in your company for $500, policy number 0234873, has this day taken out $500 additional insurance on the same property in the Orient Insurance Company of Hartford, Connecticut. I write at his request to inform you of this fact so you can make the proper entry for him.

“ Yours very truly,

“ N. T. Gentry.

“P. S. I think the house is worth $1,200 or $1,300, and Cromwell is all O. K.

“N. T. G.”

This letter was, according to plaintiff’s evidence, properly directed, stamped and mailed on the date thereof, but Burch testifies that he never saw it, never rarrived it. At all events, neither Gentry nor the plaintiff ever received any response. Nor was the letter ever returned to Gentry, although on the envelope were printed the words, “ If not called for in ten days return to N. T. Gentry, Columbia, Mo.” Upon this state of facts the trial court declared the law as follows : “3. If the jury believe that N. T. Gentry, after he had issued the additional policy of insurance to plaintiff, at the request of plaintiff, wrote a letter to T. R. Burch, the defendant’s general agent at Chicago, informing him in said letter that an additional policy of insurance had been issued to plaintiff on the property covered by the policy sued on; that said letter was properly directed and stamped and put into the United States post-office, these facts are evidence tending to show that said letter was received by defendant’s said agent, and, if they find from all the evidence that said letter was received by said T. R. Burch, then the defendant had notice of the issuance of the additional policy of insurance, and if, after being so notified, defendant made no objections and took no step to cancel the policy sued on, then the court instructs you that the issuance to and receipt by plaintiff of the additional policy in the Orient Insurance Company issued after the tenth day of November, 1886, is no defense to this action, and the jury will so find.”

I. We see no occasion for further statement of the facts, as it would seem (and defendant’s counsel so admits) it was upon the facts predicated in this instruction that the court below gave judgment for the plaintiff.

Now it is manifest that plaintiff failed to show a literal compliance with the terms of his policy in regard to the securing the written assent of the company’s general agent for additional insurance on his property. Under the strict rule of the older cases this would likely defeat plaintiff ’ s action; however, as stated in May on Insurance, section 870 : “ The courts have become more liberal in favor of the assured in the construction of this sort of provision, whether it be contained in 4;he charter or in the policy. While, as we have seen, the old rule required the consent to be in writing and indorsed on the policy, it is the decided tendency of the modern cases to hold that if the notice of the additional insurance be duly given to the company or its agent, and no objection is made, the company will be estopped from insisting on a forfeiture of the policy, because their consent thereto was not indorsed, as literally required by the stipulation.” May on Ins., sec. 372b; Hamilton v. Ins. Co., 94 Mo. 369, and cases cited. We assume then, as the court determined the issue for the plaintiff, that it was found as a matter of fact that the defendant insurance company .did receive this Gentry letter which clearly informed defendant of the plaintiff’s additional insurance. This letter then was received more than ten weeks before the fire occurred. If defendant meant to object there was ample time to do so. “ Silence for an unreasonable time after knowledge of other insurance is a waiver.” May on Ins., sec. 872&. We have considered all the points made in counsel’s brief, and find in none of them any valid reason for disturbing the judgment. There is no merit in the appeal; the judgment, therefore, is affirmed.

All concur.