Ecton v. Continental Insurance

Hall, J. — This was an action on a policy of fire insurance. The only defense that need be noticéd was, that plaintiff failed to give notice of the loss within fifteen days thereof to the defendant at its office in Chicago or New York, as required by the policy. The only questions presented here are as to the action of the circuit court in overruling certain objections made by defendant to evidence offered by the plaintiff, and in refusing to give an instruction in the nature of a demurrer to the evidence asked by it. The objections to the evidence were all on the ground that the evidence offered was “irrelevant, incompetent and immaterial.” The objections were too general, they did not with sufficient particularity specify the grounds on which they were based, and, therefore, they were properly disregarded and overruled by the court. Johnson v. Railroad, 22 Mo. App. 600; Adler v. Lange, 21 Mo. App. 519; Bank of Fitchburg v. Westlake, 21 Mo. App. 572; Margrave v. Ausmuss, 51 Mo. 561-567. The defendant’s counsel complain of the action of the court in refusing the instruction in the nature of a demurrer to the evidence on the ground, alleged by them, that there was no evidence that the plaintiff gave to the defendant the notice of loss required by the policy of insurance. The policy required the assured to give written [59] notice of the loss within fifteen days thereafter to the company at its office in Chicago or New York. The only evidence introduced in the case was introduced by the plaintiff. The evidence showed that the loss occurred on the sixteenth day of August, 1885; that in a few days after the fire the plaintiff went to the office of the defendant’s agent Wilson,' who had forwarded plaintiff’s application and had received the policy to be delivered to plaintiff, and notified him of the loss, and requested him to notify the defendant of it. The plaintiff testified that Wilson then “wrote the letter notifying them in my presence. He sealed it up and put a stamp on it I think.” He also testified: “ I do not know to whom Wilson, the agent, addressed his letter notifying the company of niy loss.” As to the letter written by him Wilson testified : “I sat down in Ecton’s presence and wrote a letter to inform them of the loss. I generally stamp my letters and mail them, but I have no recollection of stamping and mailing this one. I think I did, because of my habit. I never saw the letter afterwards.” On cross-examination he said: “I have no memory as to whether I wrote the letter and addressed it to the company at Chicago, or to Fleming at Kansas City. I cannot say which it was for I have no memory either way. I do not remember stamping, directing or posting the letter, but I think I did so in view of my general habit. All my business connections were with the company at Chicago. Never had any business with Fleming.” V In passing upon a demurrer to the evidence the court is required to make every inference of fact in favor of the party offering the evidence, which a jury might, with any degree of propriety, have inferred in his favor, and if, when viewed in this light, it is insufficient to support a verdict in his favor, the demurrer should be sustained,” otherwise it should be overruled. Buesching v. Gas Co., 73 Mo. 219; Smith v. Hutchinson, 83 Mo. 690; Fisher v. Railroad, 23 Mo. App. 201. The evidenoe referred to above, viewed in the light of this [60] rule, was sufficient to justify' the court in submitting the case to the jury, unless it was necessary for the defendant’s agent Wilson, in giving notice of the loss for the plaintiff, to state that he did so for the plaintiff, for of this statement in the letter written by Wilson there was no evidence.- But such statement was not necessary. It was permissible for the insurer’s agent to give it the notice for the assured, and it was not necessary for the agent to state that he did so for the assured. Wood on Fire Ins., 699; Stimpson v. Ins. Co., 47 Mo. 379; May on Ins., sec. 463; West Branch Ins. Co. v. Helfenstein, 40 Pa. St. 289. We think that the evidence was sufficient, because it showed that Wilson wrote a letter for the plaintiff notifying the defendant of tlie loss, and that he addressed the letter to the defendant’s agent Fleming at Kansas City or to the defendant’s office at Chicago, and it showed facts from which the inference 'was almost necessarily drawn' that the letter was addressed in the manner last mentioned ; because, as stated by Wilson, he had never had any business with Fleming, all of his business connections having been with the defendant company at Chicago. But the plaintiff did not stop here. He introduced in evidence a letter from the defendant’s superintendent to him in reply to a letter from him to the defendant containing proofs of loss, in-which the superintendent stated that he assumed that the plaintiff’s communication was forwarded as a notice of loss, and that, as a matter of fact the fifteen days fixed by the policy for a notice of loss had expired before the plaintiff had given the defendant any notice. Mahan, a local agent of defendant at Pleasant Hill, Mo., testified as follows : “Mr. J. D. Fleming lives in Kansas City, Mo., and is an employe of tbe defendant; he investigates losses and adjusts the same, subject to the approval of the company. On September 1, 1885, Fleming came to Pleasant Hill, and told me thaft he had [61] received a letter from Wilson, the agent at Lee’s Summit, Mo., stating that Ecton had some wheat burned which was insured by our company, and asked me to go out to Mr. Ecton’s and investigate the same. Fleming said that he had not received any notice of the loss from the company, but had got his information by a letter addressed to him by Wilson.” The witness added: “I read the letter from Wilson to Fleming concerning Ectoffi s-loss. It was addressed to Fleming at Kansas City, Mo. It was Fleming who sent me; not the company. Fleming said the company had not heard of the loss at that time.” This latter evidence very much impaired the force of the evidence first mentioned by us, but inasmuch as the letter written by W ilson was, if written to defendant’s agent Fleming at Kansas City, in the possession of that agent, and was not produced by the defendant when the production of it would have settled the question in defendant’s favor, we still think that from all the evidence the inference was necessarily drawn by the jury that the letter was addressed to the defendant’s office at Chicago. Judgment affirmed. All concur.