Montgomery v. Lebanon Town Mutual Fire Insurance

80 Mo. App. 500, 1899 Mo. App. LEXIS 193

Opinion

BIGGS, J.-

This is an action on a policy of fire insurance, which was alleged to have been issued by the defendant. The plaintiffs averred that the policy was burned; that they were'named as beneficiaries therein; that they were the joint owners of the land upon which the house was located and of the personal property insured; that the property was completely destroyed by fire during the life of the policy; that due proofs of loss had been furnished, and that the defendant had refused to pay the loss. Many defenses were interposed. The trial resulted in a verdict and judgment for plaintiff. The defendant has appealed. In this court its counsel insist, first, that the circuit court'of Webster county was without jurisdiction to try the case; second, that at the time the policy was issued there was other insurance on the property which the plaintiff failed to disclose; third, that the title to the land upon which the house was situated was misrepresented; and, fourth, that there was no arbitration of the loss, which under the terms of the contract was a condition precedent to the right to maintain an action on the policy.

The defendant is a local or “farmers” insurance company. Its only office is in Laclede county. The property insured was located in Laclede county, and this suit was originally instituted in the circuit court of that county. The defendant appeared to the action as originally brought and on its affidavit, which was based on the alleged prejudice of the judge, the circuit court of Laclede county attempted to change the venue of-the cause to the circuit court of Webster county. The defendant appeared to the action in the latter court and engaged in the trial. It is now claimed by its counsel that the order of the Laclede county court was insufficient to effectuate a change of venue, and that by reason of this the circuit court of Webster county did not acquire jurisdiction of the cause, and that jurisdiction thereof could not be conferred by consent. The order for the change of venue is informal, but we are not prepared to say that it is void. The order reads: “Now coming on to be heard the application for change of venue heretofore filed, after being seen and fully understood, by the court is sustained. It is therefore consid ered, ordered and adjudged by the court that the clerk of this court make out and transmit to the circuit clerk of Webster county, Missouri, a true, full and complete transcript of the proceedings and record entries with a certified copy of the application for change of venue in this cause without unnecessary delay.” But if we should concede the invalidity of this order the defendant’s case would not be helped. It is true as counsel' argue that the action was properly brought in the circuit court of Laclede county (R. S. 1889, sec. 2529), and that the defendant could not have been compelled to answer to the action brought elsewhere but it does not follow that the voluntary appearance of the defendant in another court would not confer complete jurisdiction on that court to try the case. Powers v. Browder, 13 Mo. 154; Fields v. Maloney, 78 Mo. 179; Speer v. Burlingame, 61 Mo. App. 95; Moore v. Railroad, 51 Mo. App. 504. This case is distinguishable from that of Collier v. Wilson, 56 Mo. App 420. That case originated before a justice of the peace in Camden county. It was appealed to the circuit court of that county. During the vacation of court the clerk thereof sent the papers to the circuit clerk of Laclede county, where it was subsequently tried. The record did not show an order for the transfer of the case. We held that the circuit court of Laclede county acquired no jurisdiction of the subject matter of the suit by -reason of the attempted transfer, and that the action could not be treated as a new suit in the circuit court of Laclede county by reason of the appearance of the defendant in that court, because the amount sued for was below the original jurisdiction of the circuit court.

Estoppel. In their application for the insurance the plaintiffs represented that there was - no other insurance on the property. There was evidence that this representation was false. By the terms of the policy the representations in the application were made warranties. The evidence of the plaintiffs was to the effect that the secretary of the defendant company solicited the insurance and prepared the application; that the facts concerning other insurance was communicated to him; that he said that the insurance was invalid, and that he thereupon wrote the answer to the question. On the one hand the plaintiffs insisted that if their testimony was true, the defendant was estopped to plead a breach of the warranty, and the court so instructed. ' On the other hand the defendant insisted and proved at the trial that the person who procured the insurance acted in the'dual capacity of secretary of the company and solicitor of insurance; that he acted in the latter capacity, and that in that capacity he had no power under the policy to waive any of its conditions, and further that the alleged waiver was not indorsed on the policy. The policy contains the following provisions: “If there shall be any other insurance, whether valid or otherwise, on the property insured, or any part thereof, at the time this policy is issued, or any time during its continuance, without the consent of the company written hereon * * *' this policy shall be void. And it is further expressly covenanted by the parties hereto that no officer, agent or representative of this company shall be held to have waived any of the terms and conditions of this policy, unless such waiver shall be indorsed hereon in writing.” • Under the rule in this state the latter provisions in policies is not literally enforced. It is held that the indorsement of a waiver is not absolutely essential to avoid a forfeiture (Jenkins v. Ins. Co., 58 Mo. App. 210). The remaining question is whether the person who solicited the insurance had authority to waive the condition as to other insurance. Even though we treat him as a solicitor of insurance merely, we are of the opinion that he had authority to do so, since there is nothing in the policy prohibiting him from doing so, nor does the policy vest such power in a particular officer of the company. The authority of an agent to solicit insurance carries with it by legal implication the right to fill up applications and to do all other things necessary to the proper and full discharge of the business in hand. Carrying out this principle it is the established law in this state that if the assured communicates to the soliciting agent the true facts concerning the property, its title, etc., and he signs an application believing it to represent the true facts; or, if the agent assures him that the matter disclosed is of no consequence, and that a correct answer in reference thereto is not material, such statements in the application are regarded as having been made by the company itself, and it is estopped to deny their truth with a view of avoiding liability under the policy. Combs v. Ins. Co., 43 Mo. 148; Franklin v. Ins. Co., 42 Mo. 456; Breckenridge v. Ins. Co., 87 Mo. 62; Barnard v. Ins. Co., 38 Mo. App. 106; Roberts v. Ins. Co. 26 Mo. App. 92; Hubbard v. Ins. Co., 57 Mo. App. 1; Wolf v. Ins. Co., 75 Mo. App. 337; Anthony v. Ins. Co., 48 Mo. App. 65. The case at bar is distinguishable from Jenkins v. Ins. Co., supra, in that the assured there predicated a waiver on the knowledge and acquiescence of tho local soliciting agent as to insurance taken out long subsequent to the issue of the policy, which presents quite a different question. With’ that act of the assured the local agent had no connection whatever. As to that risk his duty as agent had long since ceased.

As to the objection that the plaintiffs failed to seek an arbitration of the loss before commencing their suit, it is sufficient to say that the defendant denied all liability under the .policy, heneé there was nothing to arbitrate. Where an insurance company denies liability upon grounds other than defects or insufficiency in the notice of proofs of loss the arbitration clause in the policy is inoperative. In such a case an offer to arbitrate would be vain and useless. LaForce v. Ins. Co., 43 Mo. App. 518; Anthony v. Ins. Co., 48 Mo. App. 65; McNees v. Ins. Co., 61 Mo. App. 335; Dautel v. Ins. Co., 65 Mo. App. 44. The judgment of the circuit court will be affirmed.

All concur.