City of De Soto v. American Guaranty Fund Mutual Fire Insurance

74 S.W. 1, 102 Mo. App. 1, 1903 Mo. App. LEXIS 540

• Court: Missouri Court of Appeals
• Decided: April 28, 1903
• Status: Published

Opinion

REYBURN, J.

Respondent, a city of the third class, brought this action against defendant, a corporation organized under the fire insurance laws of the State of Missouri, on a policy issued by it insuring two frame, dwellings in the sum of $500 each, and $100 upon the contents of each of such buildings.

The defenses interposed by defendant’s answer and relied on to defeat plaintiff’s claim were, that the buildings insured had becom^ were and remained vacant and unoccupied at the time of the fire and for ten days prior thereto, and thereby under the express terms of the contract of insurance the policy became void; that the application for insurance filed with defendant, which was made part of the policy and a warranty of the insured, stated that the two dwellings insured were occupied as a dwelling by one Maloy as sexton, and that such warranty was false and untrue, and that such buildings were not occupied by Maloy or anyone else as a residence, but when occupied at all were used as pest-houses, and finally that it was agreed under the policy that if the hazard should be increased by any means within control or knowledge of the insured, the policy should be null and void, and that the hazard was so increased by the change of occupancy from dwellings as represented in the policy and application to pesthouses.

The reply contained averments charging and constituting a waiver of the provisions of the policy invoked by defendant’s answer.

The local representative of defendant, a resident of De Soto, had sold the property to plaintiff, wrote the application for, issued and countersigned the policy. He acknowledged that at the time he prepared the application and inserted therein statements to the effect that the property was occupied by the city sexton, and used as a cemetery by the city, and incorporated therein that if permitted to write the risk he would secure the insurance of all the other property of plaintiff, and added a recommendation therein to defendant not to decline the application, that he then knew the property was not so occupied and that' he then believed it was occupied by smallpox patients, and he knew also that the buildings were to be used for such purposes by plaintiff and were called pesthouses.

There was also the testimony of the mayor of plaintiff tending to prove that this agent was fully apprised of the vacancy of the buildings before the policy was issued, and that the agent further stated the buildings would be insured as farm property, and that the application, which the mayor never saw, was formal; that the agent knew the property and the purposes for which • it was employed; that after the insurance was effected he had discussed the question of vacancy with him, and the agent stated to the mayor that if the buildings were locked up with furniture therein, they would not be considered vacant, but this testimony was in large part controverted by the agent.

It was admitted that an adjuster had been sent, by defendant to examine and settle the loss.

By agreement the cause was tried before the court, and a special finding of facts made, in which the court found that the provisions of the policy relied on by defendant had been waived. The special findings made by the trial court pursuant to the statutory provisions are conclusive upon issues of fact in actions at law, if the record contains evidence sufficient to support such findings and they will not be disturbed on appeal if the conclusions of law are correct. Railroad v. Railway, 151 Mo. 373; Lumber Co. v. Mining Co., 78 Mo. App. 676; Freeman v. Moffitt, 119 Mo. 280; Sutter v. Raeder, 149 Mo. 297. The knowledge of an insurance agent is imputable to the insurance company, and the facts in the evidence fully warranted the trial court in its finding of waiver and estoppel. “It is no hardship to hold insurance companies bound for the acts of its agents whom it authorizes to solicit insurance and countersign, issue and deliver its policies. The old maxim lqui facit per alium facit per se/ applies in all its ancient vigor to such a case.” Rissler v. Ins. Co., 150 Mo. 366; Parson v. Ins. Co., 132 Mo. 583.

Under sections 7969 and 7970, Revised Statutes of 1899, the amount of insurance on the buildings was conclusive, but proof of the value of the personalty destroyed was an essential to recovery for its destruction. The only testimony directed to this issue was the statement of the mayor who, without specifying or detailing the nature of the property, testified that it had cost between two or three hundred dollars when new; that it had been in the buildings destroyed about six months in use by the smallpox patients, and he did not know what it was worth at the time it was consumed. The burden was on plaintiff to establish the value of such property at the time of the fire, and the difficulty attending the proof of such fact from the conditions prevailing did not justify or excuse its failure in that regard.

The judgment will be reversed and remanded with directions to the lower court to enter judgment for the plaintiff for $1,000, with interest thereon from the sixth day of December, 1901.

Bland, P. J., and Goode, J., concur.