Jackson v. German Insurance

Philips, P. J. The demurrer to plaintiffs’ evidence was properly overruled. A demurrer admits the truth of the facts testified to by the witnesses, and every reasonable inference that may be drawn therefrom. Noeninger v. Vogt, 88 Mo. 587. The real contention in this case was, as to whether or not the defendant had, by its conduct, acts, or declarations, waived a strict compliance with the provision of the policy respecting the payment of the premium note up to the time of the loss. The agent at Carthage, who effected this contract of insurance, was the state agent of defendant, clothed with power to make such contracts, to issue policies, and contract in respect of the matter of premiums. Such agents are termed general agents, in contradistinction to special agents. Parties dealing with such general agents have the right to act upon the apparent authority of such agents, and are not bound or affected by any limitations or instructions placed upon or given to such agents by their principals, not known to the third party at the time of so dealing with the agent. In such case the acts, conduct, and declarations of such agent, within the scope of his agency, are just as obligatory upon the company “as if they proceeded from the principal.” Union Insurance Co. v. Wilkinson, 13 Wall. 222; Franklin v. Insurance Co., 42 Mo. 456; Brownfield v. Insurance Co., 26 Mo. App. 390. Such agents may waive the prompt payment of the premium and extend the time of payment; and by their acts, conduct, and declarations as effectually estop, or bind, the company as if done by its managing board. Pelkington v. Insurance Co., 55 Mo. 172; Horwitz v. Insurance Co., 40 Mo. 557; Union Insurance Co. v. Wilkinson, supra; Hanley v. Life Association of [74] America, 69 Mo. 380; Schmidt v. Charter Oak Life Insurance Co., 2 Mo. App. 339. When snch agents, either by their general course of dealing, or by their conduct and assurances in the particular case, induce the assured to believe, and act upon it, that he may pay the premium at a later date than specified in the note and policy, he may act accordingly, and no forfeiture will be permitted in contravention of such extension. It was, therefore, simply a question of fact, to be ascertained from all the surrounding circumstances, acts, and declarations detailed by the witnesses, whether the agent did so waive the letter of the policy respecting the time of payment of the premium. We are satisfied there was ample evidence introduced by the plaintiffs to entitle them to go to the jury. There are some strong corroborative facts and circumstances, admitted by the defendant’s evidence, to confirm the plaintiffs’version. Waiving any discussion of the pe: culiar phraseology of the closing words of the notice sent plaintiffs, by the agent, on November 15, “you cannot recover in case of loss, after note comes due, until same is paid,” (which was calculated to convey the impression, to one unfamiliar with such matters, that the insured might, nevertheless, recover on the policy, whenever he did pay the premium), it is quite evident the agent did not, at the maturity of the note, either declare any forfeiture for non-payment, nor take any steps to enforce payment, although the agent and thei clerk of the company testified that it was their custom to take steps to enforce the payment of over-due notes. The plaintiffs’ evidence was, that the work done after the first of December, when the note was past due, was to be credited on the note. The agent admits he did so credit it, but that it was prior to the maturity of the note. But he did not produce the note, which would have spoken plainly on this point. Defendant claims that it sent the note by mail to the plaintiffs, but it does not appear to have ever been received by the plain [75] tiffs.' It was a little remarkable that the company should thus mail this nóte to the party, when they had an agent in the town where the plaintiffs resided, and the very agent who had transacted this whole business with the plaintiffs. Why did not the company return the note to its agent to be delivered to the plaintiffs, thereby securing certainty in its delivery, and preserving tangible and certain evidence of the fact % Again, Harrison, the assistant, testified that when he enteréd the credit on the note, for this work, he also charged himself on the books of the agent with the amount. Why was not this book produced ? But as further and more irrefragable proof that the agent regarded this contract as binding up to January following, is the fact, admitted by Harrison himself, that the five dollars for wood-sawing, then done by the plaintiff, Andrew, was to be credited on the note. The parties certainly, up to that hour, considered the time of payment extended. To parry the force of this important evidence, Harrison stated .that he then advised the plaintiff that he must pay his note, or the policy would not avail him. There was a direct conflict between his' testimony and the plaintiff’s in this regard. It was for the jury to say which they would believe. There is no law to prevent the jury from crediting Andrew Jackson, in preference to Wm. Henry Harrison, or any other man. The additional strong fact remains, too, that the agent continued, after this, to hold on to the note of plaintiffs, as the agent of the company, and on to the policy as agent for the plaintiffs. There was no surrender of either, nor any effort to collect the past-due note. This looks very much as if the agent held the plaintiffs in the attitude of “working and sawing out,” if there was no loss by fire, but if a fire should occur, there was no policy. The law and good conscience will not allow the company to occupy such an equivocal and advanta [76] geous position. Baldwin v. Chouteau Insurance Co., 56 Mo. 157. II. Complaint is made of the action of the court in giving the first instruction, as amended by the court. The chief criticism made on it is, that there was no evidence before the jury respecting the “habit of extending the time of payment of notes.” There was some evidence to the effect that the company and this agent were in the habit of extending the time, but that it was done in writing, indorsed on the paper. Be this as it may, the instruction, as originally framed, and argued before the jury by counsel, very properly presented the law, as we have already shown, :'as applied to the evidence before the jury. Ño matter what the defendant’s habit in this respect was, if, as the evidence amply tended to show, in this instance, the agent did waive the time of payment, and give the plaintiff to understand that he might work out the .amount of the note, as testified to by him, this was .sufficient. By the answer made to the special interrogatories it is apparent that the jury did believe the statement of the plaintiff, and that as late as January, 1885, the time of payment was waived and extended. That was all the law required the plaintiffs to prove on this issue. And because the court went further in the amended instruction, and imposed upon the plaintiffs the burden of making additional proof of a fact not •essential to their right of recovery, when the essential fact was supported by the proof, can constitute no reversible error in defendant’s favor. Gaty v. Sack, 19 Mo. App. 477, and cas. cit. III. It is assigned for error that the trial court refused to submit to the jury the following interrogatories : “If there was a waiver or extension of time of payment of note, was.it made verbally or in writing ? ” “ If the waiver was verbally made, what was said, who «aid it, and when and where ? ” [77] Why submit to the jury the question as to whether this waiver was in writing, when the plaintiffs made no such claim or pretence % This statute is not thus to be-made use of. The issues submitted under it must pertain to the pleadings and the proof, and the matters-in controversy. The last interrogatory was properly refused. It is not contemplated by the statute authorizing these special verdicts that the jury should be required to report the evidence by which they reach their conclusion. It is a special verdict, and not a report of the evidence by which they reach the verdict. Nat. Bank v. Peck, 8 Kas. 660; Turner v. Railroad, 23 Mo. App. 12. As said in Flannery v. Railroad (23 Mo. App. 127): “ The question submitted should be strictly limited to the material issues made in the pleadings, and. the facts essential to support the verdict. They should be few in number, etc., so as to avoid confusing the jury and leading them into unprofitable wrangles over non-essentials. And especially should the questions to be-answered be intelligible to the apprehension of the average juror, and be in such form as to admit of a categorical answer under the evidence.” IV. The court refused two instructions asked by the defendant. All that was valuable and proper in them had already been accorded in other instructions • while the vice in one of them is so apparent as not to justify special review. The verdict of the circuit court is affirmed. All concur.