Deland v. Aetna Insurance , 68 Mo. App. 277 ( 1897 )

Ellison, J.

This action is based on a fire insurance policy issued by defendant. The trial court, at the close of the evidence in behalf of plaintiffs, sustained a demurrer to the testimony interposed by defendant.

The questions presented relate to the proofs of loss, including a certificate from a notary public or justice of the peace residing nearest to the place of the fire. And also as to the correctness of the court’s ruling in rejecting an offer of evidence made by plaintiffs.

IIicaiR«ron: cler' agenta assurAs to the latter, it seems that the policy was issued in the name of O. R. DeLand & Son, while the action is brought in the name of O. R. DeLand & Sons, there being two sons interested, instead of one. It further appears that shortly after the p0]jiCy was delivered, plaintiff discovered that it was not in the plural number, and immediately went to the defendant’s agent, through whom they had obtained the insurance, and who had taken the application, and made known to him the discrepancy; and that he replied that the policy was all right — it made no difference, and that it was a mere clerical error, and that it covered the interest of all the owners. We think the evidence should have been admitted. The error related to the application which the agent took; the policy having followed the application as taken by him. And so if this agent knew the proper parties were O. R. DeLand & Sons, and yet took the application as O. R. DeLand & Son, defendant can not afterward take advantage of it.

—error: evidencü agent' But it is clear from the suggestion made in behalf of the defendant, that this agent was regarded by the company as merely a soliciting agent, without authority to bind the company by statements relating to the sufficiency of the policy. Without deciding that to be a correct proposition of law, we will say that there is evidence in this case which would justify the jury in finding the agent to be something more than a mere solicitor. There was evidence tending to show that he contracted the rate óf premium, issued the policy, and collectéd the premium, and that he corresponded directly with the company.

_ — : proofs of o°bTect.‘u ure to Proofs of loss were made out and fonvarded to defendant, which, for present purposes, we will assume were defective, and yét we hold them to be sufficient under the circumstances developed in evidence. It appears that the fire occurred December 9, 1893, and that the proofs were forwarded January 8, 1894. The defendant retained these proofs, without objection, until the sixty days’ limit in which the, policy required the proofs to be made, had expired. Under such circumstances, objection comes too late, and defendant must be held to have accepted the proofs as sufficient. See authorities in plaintiffs’ brief.

-¡certificate of ScS?10’when But it is claimed that plaintiffs’ case is fatally defective, in that defendant required of them to furnish a certificate as to the honesty of the loss, etc., of the nearest notary public or justice of the peace, who was not interested in any way. Such requirement is one that is considered reasonable and- is enforced by the courts. Noonan v. Ins. Co., 21 Mo. 81. But there are circumstances which will excuse its performance, even though it be properly demanded by defendant, as it was in this case. In this case, the evidence shows that the nearest notary or justice of the peace to the fire, was an attorney (he filled both offices), who was in the employment of the defendant, he having been retained by the defendant after the fire. We consider that fact sufficient to1 excuse plaintiff from getting him. But the evidence tends to show that plaintiffs, not kncnving of the relationship between that notary and the defendant, applied to him to make the certificate, and that he very properly refused. The evidence further tended to prove that plaintiffs, or their attorney, afterward learned of another notary public (also said to be nearest the fire) and requested a certificate of him, which, for some reason not appearing, was refused. There was evidence further tending to prove that plaintiffs’ attorney investigated in the town of Jericho, where the fire occurred, and did not learn of any other notary or justice. Now, if the triers of the fact belieAre that applications for a certificate were made to these parties and refused, and that the plaintiffs themselves, or their attorney, in good faith, made reasonable endeavor to find another official, their failure ought not to preclude a recovery, in the light of the conceded fact that it was defendant’s act, in employing the notary and magistrate above mentioned, 'which prevented plaintiffs from obtaining the certificate.

The judgment, under the foregoing views, must be reversed and the cause remanded.

All concur.