Vining v. Franklin Fire Insurance , 89 Mo. App. 311 ( 1901 )

GOODE, J.

Strong presentations of both sides of this cause have assisted us. We shall not go into the inquiry whether error was committed in refusing the appellant the right to a jury trial, as the conclusion we have reached about the case renders the consideration of that point unnecessary. If the court was wrong in holding that the equitable defense pleaded in the answer, and the affirmative relief prayed in connection therewith made the whole case one for equitable cognizance, it was an error the respondent invited and it can not complain, therefore, if we dispose of the appeal on the same theory. Hill v. Drug Co., 140 Mo. 433; Pope v. Ramsey, 78 Mo. App. 157. The refusal of a jury must have been excepted to for a party to have the court’s action in that regard reviewed. Klotz v. Parteet, 101 Mo. 213; Estes v. Fry, 94 Mo. 266; Leitch v. Miller, 40 Mo. App. 180; Calahan v. Shotwell, 60 Mo. 398; Lee v. Dunn, 29 Mo. App. 467. A fortiori will the party who insists that a case be withheld from a jury be bound by his act.

While we regret to differ from the chancellor who tried the controversy below, about the effect of the evidence, an attentive reading of the record has failed to produce an impression of bad faith or fraud on the part of either the plaintiff or her brother in procuring the indorsement of June 14, 1897. We can not defer to the finding on that issue. Every act done by them was consistent with perfect integrity, nor was any motive shown for dishonest practices by them on the agents of the company- after the death of Mrs. Vining and the gift of the property by the brother to the plaintiff; it was proper for them to look after the insurance. The version of the occurrence in the office of Delafield & Snow on June 14, given by Charles Vining, displays an upright and lawful purpose to have the insurance put on a safe basis — one which conformed to the altered circumstances. He testified that he requested a new policy of insurance in the name of his sister, telling Mr. Snow that while it had formerly been insured in his mother’s name she had never owned it, but that it was now owned by his sister by gift from him. That was a natural statement for him to make.

On the other hand, the version given by Day places the insurance company in a bad light. He knew Mrs. Vining was dead; his testimony is that Charles said the heirs wanted to turn the property over to Lotta. Thereupon the agency kept the policy until the next day, made the foregoing indorsement on it and delivered it to Charles Vining as being a good contract of insurance. But these experienced insurance men must have known and must be held to have known that if Mrs. Vining owned the property, as they claim they believed she did, the other heirs could not by their act vest title to- it in the plaintiff until the estate had been administered. This would look too much like an attempt on the part of the insurance company to continue the policy so that there would be no risk thereafter, as there had been none before. The other view comported with good faith on the' part of all concerned and will be adopted. The weight of the evidence, too, seems to be with the appellant in regard to the transactions. She and her brother both testify that it was had with Mr. Snow.

It is urged that the original policy being void in the hands of Mrs. Yining, because she had no insurable interest in the property, the indorsement- was likewise void. This position is untenable. Numerous authorities are cited by the respondent to support it, but they are all cases in which the policies were assigned by the assured in whose hands they were void from the first. This action is not on assigned policy. An assignee takes no better title and no more interest than was held by his assignor. If the policy was void when issued it would be void, of course, when assigned, even though the company assented to the assignment. This would necessarily be true, because the transaction would be simply a transfer of the original contract. If the original contract was a nullity, only a nullity would be transferred. Froehly v. Insurance Co., 32 Mo. App. 302, is to be distinguished from the present case, because that was really an attempted assignment of a void policy by Eroehly to his wife. The opinion says that the theory of a new contract having been made was wholly unsupported by any evidence. The defendant there was a mutual fire insurance company, which could only write insurance on property owned by its members, and it was not shown that Mrs. Eroehly was or could be a member. It was held, moreover, that there was no evidence to show that a new contract was applied .for and that the officers intended to make a new one; or that the transaction, under the charter of the company, would have been valid if they had so intended.

But this defendant undoubtedly had the right to make a valid contract of insurance with Lotta A. Yining, which right would not be affected by the fact that it had previously made a void one with her mother. It might also adopt as part of the contract with the plaintiff, stipulations and provisions in the one made with Mrs. Yining. In other words, instead of filling up a fresh blank it could make a new contract of insurance by an indorsement on the back of the old one, inasmuch as the new one was to run for the same period, cover the same property and called for the same premium the former one did. While it is true, a void policy is no less void after assignment, it is equally true that however void, it may be validated, and however dead, it may be revived, by an arrangement between the parties. Ostrander on Insurance, sec. 22; May on Insurance, 125; New v. German Ins. Co., 5 Ind. App. 82, 31 N. E. 435; Ins. Co. v. Watson, 23 Mich. 486; Brink v. Ins. Co., 70 N. Y. 593; Ferre v. Trust Co., 67 Pa. St. 373. The case is not complicated-by the fact that the new contract was made by an indorsement on the back of the old one. That mode was as good as any other, provided the elements of a contract are found in the indorsement. A contract of insurance does not necessarily imply a policy, nor indeed a written instrument at all. It may be orally made. Like any other agreement its essence is a meeting of the minds of the contracting parties. Lingenfelter v. Phoenix Ins. Co., 19 Mo. App. 252; Duff v. Fire Ass’n, 129 Mo. 460; Henning v. Ins. Co., 47 Mo. 432; Baile v. Ins. Co., 73 Mo. 73. If the contract is orally made and nothing said about conditions, it is presumed the parties intended it should contain the usual conditions of such contracts. Salsbury v. Ins. Co., 32 Minn. 458. The writing in question, however, on the back of the old policy, referring to it and providing that it should attach in the future for the plaintiff’s benefit, was a complete policy in the ordinary form. The only change needed was the name of the beneficiary, and that appears in the memorandum. Beyond a doubt, the minds of the contracting parties in this case were thoroughly agreed: The agents of the defendant company undertook to insure the plaintiff on the property in question for a term to run from June 14, 1897, to November 30, 1899. Tbe plaintiff thought she was getting insurance for that term.

It is insisted that as a new contract, the transaction of June 14 must fail, because there was no consideration to support it. We accede to the proposition that there must have been an independent consideration for an agreement to insure made by the defendant on that day, in order for such agreement to be effective; otherwise it would be a nude pact on which an action would not lie. But we think it is clear there was a sufficient consideration and that both parties recognized that fact. It is conceded the original policy issued to Mrs. Vining was void and also that the premium of thirty dollars had been paid by Charles Vining. It is likewise conceded that no fraud was practiced to obtain that policy, but that it was taken out by Mrs. Vining in her own name by mistake. While the assured can not recover unearned premium on account of a void policy if there has been fraud practiced in its procurement, the rule is otherwise where the holder is innocent. If the risk never attached by reason of a mistake, free from any evil practices, the insured is entitled to the return of the whole premium, for none of it was earned. May on Insurance (4 Ed.), sec. 568; Ostrander on Insurance, sec. 18; Gray v. Sims, 3 Wash. C. C. 276; Penson v. Lee, 2 Bos. & P. 330; Waddington v. Ins. Co., 17 Johnson (N. Y.) 23; Clark v. Ins. Co., 2 Woodb. & M. 472; Friesmuth v. Ins. Co., 10 Cush. 588 ; Anderson v. Thornton, 8 Exch. 425; Waller v. Northern Ass’n Co., 64 Ia. 161; Delavigne v. Ins. Co., 3 Johns, cas. 310; Tyrie v. Fletcher (1774-8), Cowp. 666. Besides, Mrs. Vining’s policy expressly provided for a return of the premium in case it was void, and a good part of the premium had not been earned even if it was valid. The new contract was to take the place of the old one during its unexpired term in consideration of the retention by tbe company of tbe unearned premium. This was consideration enough.

The plaintiff had the right to recede from the adjustment which had been made. She would have had this right at any time before payment, if the company had intended to pay, and she had it all the more because they did not so intend. The adjustment was an accord but not a satisfaction, which is no defense to an action. Giboney v. Ins. Co., 48 Mo. App. 185; Goff v. Mulholland, 28 Mo. 397.

The only remaining point that requires consideration is whether the action was prematurely brought? The basis of this contention is that an appraisement or an effort by the assured to secure ah appraisement, was a condition precedent to bringing suit on the policy. Generally speaking, this is true, where there is such a provision in the policy. Murphy v. Mercantile Ins. Co., 61 Mo. App. 321; McNess v. Southern Ins. Co., 69 Mo. App. 232; Swearinger v. Ins. Co., 66 Mo. App. 93; Hooker v. Ins. Co., 69 Mo. App. 141; Hamilton v. Ins. Co., 136 U. S. 242. But this provision, like any other contained in a contract, may be waived. It is supposed to be there for a rational purpose; namely, to ascertain in a fair and impartial way what the loss is in order that the company may settle it. If the company does not intend to settle, there is no reason why the loss should be appraised. If litigation must be resorted to to collect, the means of ascertaining the damage without litigation need not be called into play. The law is that a denial of liability is a waiver of those requirements and an action may be brought without complying with it. Dautel v. Ins. Co., 65 Mo. App. 44.

The adjuster testified that he refused to pay the plaintiff unless she would get receipts from the other heirs. In fact, he demanded an administration of the estate of her mother and a receipt from the administrator. Moreover, when the company was asked in the letter of January 25, 1898, if it desired anything further in the way of an estimate of the loss, it replied that the loss had already been adjusted and that it was ready to pay the same to the party or parties who were or might become legally qualified to receive it and discharge the company; further, that it required the signature of a duly appointed administrator, or the joint signatures of all the heirs. This was in effect a denial of liability to the plaintiff and a refusal to pay her any sum whatever. The waiver was much stronger than in Dautel v. Insurance Co., supra. The plaintiff was thereby relieved from the necessity of attempting to secure an appraisement of the loss before instituting her action.

The testimony shows, in the clearest possible manner, that the damage sustained exceeds the face of the policy. It was above two thousand dollars. No evidence was offered by the defendant to rebut this proof, which is satisfactory to our minds. The judgment of the court below will be reversed and the cause remanded with a direction to the trial court to enter judgment for the plaintiff for the sum of two thousand dollars, with interest at the rate of six per cent per annum from a date sixty days after the reception by the defendant company of the proofs of loss which were mailed to it by the plaintiff, and for the costs of the action.

All concur.