Doerr v. National Fire Insurance

253 S.W. 39, 215 Mo. App. 372, 1923 Mo. App. LEXIS 186

• Court: Missouri Court of Appeals
• Decided: June 26, 1923
• Status: Published

Opinions

FARRINGTON, J.

This appeal is taken from a judgment recovered in the trial court on a policy of theft insurance on plaintiff’s automobile. There were certain interests of a mortgagee involved, as shown by the record, but for a decision of this appeal it will be unnecessary to state the facts with reference thereto.

The principal question involved is one of waiver; the appellant contending that there was no evidence which would justify the court in submitting the question of waiver to the jury, and further contending that in order for the forfeiture which was provided for in the policy to be waived in this character of case the waiver must take on an element of estoppel, and that being lacking it is argued there were no grounds assigned which would justify the plaintiff in avoiding his breach of the policy and á consequent forfeiture thereof.

The policy provided, by a rider for a certain character of locking device to be kept on this car and so stated that in consideration of the agreement to keep the locking device on the car and the car locked when left by the owner that the premium for insurance was reduced. The evidence shows that the plaintiff’s car was run into his garage one night and the key turned locking the device; but the plaintiff admitted on the trial, and admitted to defendant’s agent when he reported the theft of the car, that he had left the key in the lock. The trial court, in passing on an instruction, held that this was a breach of the locking device stipulation in the policy and the respondent treated his act as a breach of the policy but sought to avoid it by showing that the defendant had waived the right'to insist upon such forfeiture.

We think plaintiff’s evidence makes a case which should go to the jury on the question of waiver. He testified that on the day after the theft he went to the general agent of the defendant company, who had countersigned and delivered his policy, and explained to him about how his car was left and stolen and about him having loft the key in the lock of the car. He further testified that this general agent sent him to an Adjustment Company, as he says, “for the purpose of having my loss adjusted.” His testimony then discloses that he told those in charge of the Adjustment Company the exact situation and that they notified him that they had sixty days to look for his car and if they did not find it, he says this agent said, “we will pay you.”

Appellant cites cases where language is used which would bear the interpretation that there must be a consideration or an element of estoppel in order for a forfeiture such as this to be waived. These cases, however, are by the St. Louis and Kansas City Courts of Appeals both of which courts hold that in what are termed conditions subsequent, a breach does not render the policy void but merely makes it voidable at the election of the insurer and can be waived without the element of estoppel or consideration entering into the conduct of the insured and insurer. That is to say, if the insurer does some act from which it can be inferred that it does not intend to insist on the forfeiture, then there is evidence from which a jury may find that a waiver was intended. In the case of Carp v. Queen Insurance Co., 116 Mo. App. 528, 92 S. W. 1137, Judge Goode, in a. well-considered opinion, holds that the iron safe clause attached to a policy is merely a condition subsequent, and on the same reasoning we must hold that the agreement to keep the car locked with the special device is a condition subsequent in this policy, that is to say, the policy of insurance was in force and if the insured failed to keep his agreement the insurer has the right to declare the policy forfeited and hence avoid the policy. This character of condition must be distinguished from one where the policy never comes into operation or comes in force until some condition or act if performed such as, for example, that a policy will not be in force or become operative until it has been delivered to one who is alive and in good health. We, therefore, hold that the policy in this case was in force and was subject to be forfeited for the failure of the plaintiff in complying with the lock device stipulation; but his testimony disclosed that he told the whole story with reference to his failure in that respect to the general agent of the company, and the general agent sent him to an adjusting concern for the purpose of adjusting the loss. It is admitted that he was told to come back from time to time to the adjuster’s office, which he did, and that he never at any time was told that the company was going to insist on a forfeiture by reason of his failure to comply with the stipulation as to the locking device until some sixty days after the oar was stolen. We think from his testimony there fis evidence not only of an express waiver but evidence of an implied waiver, that is to say, in addition to what be says the adjuster told him, that the company would wait sixty days and if the car was not found it would .pay him, the company is bound by the conduct of the general agent, whom he first told about his failure in reference to the stipulation, in not then and there informing* him that his failure in that respect forfeited the policy; he instead told him to go to an Adjustment Company for the purpose of adjusting the loss.

The following cases, we think, clearly uphold respondent’s contention that there was a case made to go to the jury on the question of waiver: Pace v. Insurance Co., 173 Mo. App. 485, 158 S. W. 892; Travis v. Continental Ins. Co., 179 S. W. 769; Myers v. Casualty Co., 123 Mo., App. 687, 101 S. W. 124; Ramsey v. Insurance Co., 160 Mo. App. 242, 142 S. W. 763; Bolan v. Fire Insurance Co., 58 Mo. App. 233; Keys v. Insurance Co., 174 Mo. App. 679, 161 S. W. 345; Dye v. Insurance Co., 227 S. W. 1068.

Any question regarding testimony introduced relative to conversations with agents becomes harmless in this case when it was shown that the plaintiff notified the general agent, who issued the policy, of the facts. He certainly had authority to waive. [See James v. Mutual Reserve Fund Life Ass’n, 148 Mo. 1, 49 S. W. 978; Jones v. Prudential Ins. Co., 173 Mo. App. 1, 155 S. W. 1106.]

The plaintiff’s first instruction is complained of by appellant as being confusing, misleading and extremely long. The latter criticism Is well taken, it covering two and a half full printed pages. It does, however, declare the law correctly on the question of waiver, and while it might require the finding of some things which were unnecessary to a recovery, it was in the conjunctive form and in our opinion could not be said to be prejudicial to the extent of amounting to reversible error. Especially is this true when read in connection with instructions giv en on behalf of defendant which clearly set forth the issues on waiver. The judgment is affirmed. Bradley, J., concurs.

Cox, P. J., files dissenting opinion.