Maddox v. Dwelling House Insurance

Rombauer, P. J. — This is a suit on a fire insurance policy seeking to recover for a loss by fire of plaintiff’s dwelling house and its contents, the two being separately valued in the policy. Touching the contract of insurance and the destruction of the property insured within the life of the policy, there is no controversy. The defense' is based upon a breach of warranties contained in the plaintiff’s application, which, by the terms of, the contract, is made part of the policy, and the noncompliance by plaintiff with a condition in the policy requiring him to furnish proofs of loss within thirty days after the loss. The plaintiff recovered a judgment for the full value of the property destroyed, and the defendant now assigns for error the refusal of the court to direct a verdict for the defendant. The application and contract of insurance are substantial duplicates of those we considered in Holloway v. Dwelling House Ins. Co. (48 Mo. App. 1). Here, as there, the policy contained the clause: “This entire j)olicy shall he void, if the insured has concealed or misrepresented, in writing or otherwise, any fact or circumstance concerning this insurance or the subject thereof.” Here, as there, the application is made part of the policy, and its recitals are made warranties by the terms of the contract. The only question, therefore, before us on that branch of the case is whether a breach of the warrant} is shown here by the plaintiffs’ own evidence. If so, the plaintiff cannot recover, because, as we said in the Hollotvay case, “a warranty is like a condition precedent; the materiality or immateriality of the fact represented signifies nothing.” In the case at bar the plaintiff stated the value of his house in his application to be $700, and to thé question, “State number of acres of land owned by you, on which the property is situated,” he replied, [346] “two hundred and forty.” While on the stand, he testified that his house was of the same value at the date of insurance and date of destruction, and that such value was $600. He also testified that he owned only one hundred and sixty acres in the tract whereon the. house stood, but that his wife owned eighty acres adjoining. It, therefore, stands conceded that the warranty was broken in these two particulars. The only difference between this and the Holloway case consists in the fact, that here the plaintiff seeks to explain the origin of the mis-statements in a plausible manner tending to show that he was no£ guilty of any intentional deception. But, as we said in the Holloway case, the question touching warranties in insurance policies is. not whether they were fraudulent representations, but whether they were true in point of fact. Nor is there any room for the holding that the statements as to the value of the house and acreage of the land were a mere expression of opinion. This is best illustrated by the ruling of the court in Bennett v. Agricultural Insurance Company (50 Conn. 420, and 51 Conn. 504). Upon the first appeal of that case, a judgment for the plaintiff was reversed, because the court submitted to the jury the materiality of the warranties. The warranty in that case was, that the plaintiff’s land on which the building stood contained sixty acres, and the proof tended to show that the tract contained only forty-six acres and a fraction. Upon the second trial of the cause the trial court charged the jury that, if this “was understood to be a statement of a fact, to-wit; that there was precisely sixty acres and no less in the place, the law is so that the statement must be literally true, and, if not true, there can be no recovery. If the statement was understood to be the statement of the plaintiff’s opinion of the number of acres, and there was substantially sixty acres in the place, then [347] it is necessary for plaintiff to satisfy you that-such statement was true, and that such was his opinion, and that there was substantially sixty acres in the place.” The supreme court held this charge erroneous; that the fact was capable of mathematical demonstration, and that the inquiry called for a fact and not for an opinion. In the present case there was not even room for any difference of opinion, since the land consisted of fractional subdivisions of a section, the contents of which are determined by law. It' results that a breach of the warranty having been shown by the plaintiff himself, there can be no recovery on this policy. We have certified the case of Holloway v. Dwelling House Ins. Co. to the supreme court, as the Kansas City court of appeals was of opinion in Crook v. Insurance Co. (38 Mo. App. 582) that in cases of a breach of warranty, having reference to the real estate only, there still may be a recovery for the loss of personal ■property, separately valued in the same policy. In view of that fact- it may be material to determine the further point arising upon this record, whether the plaintiff has any right of recovery for the personalty destroyed, even if the distinction made by the Kansas City court of appeals were logically tenable. One of the conditions of this policy is, that the assured shall furnish proofs of loss within thirty days after the loss. The policy also contains this provision: “No suitor action on this policy for the recovery of any claim shall be sustainable in any court of law or equity, unless the insured shall have fully complied with all the foregoing requirements.” In construing these identical clauses it was held by the supreme court of Michigan in Gould v. Dwelling House Ins. Co. (51 N. W. Rep. 455; 52 N. W. Rep. 754), that a failure to furnish proofs within thirty days, avoids the policy. In that case many authorities on [348] the subject are collected and reviewed, and it is shown that the cases uniformly hold as there decided. In the case at bar the fire occurred January 21, 1892. On. the twenty-eighth of that month the plaintiff mailed proofs of loss to the defendant at Chicago, in the state of Illinois, verified by three witnesses, but not by himself. On February 8th, the defendant replied, stating that the proofs were not in conformity with the requirements of the policy, and stating that the plaintiff’ should himself make affidavit to the claim. That these proofs were insufficient is conceded. On the eleventh of February the plaintiff mailed a claim in proper form, but, instead of addressing it to the defendant at the defendant’s place of business in Chicago, he caused it to be addressed thus: “ General Agent Western Department, 95 Av., Chicago, Ill.” The address contained neither the defendant’s name, nor location, nor the name of any addressee. This letter admittedly never reached the defendant or its agent, but was returned to the plaintiff by the dead letter office from "Washington about the eleventh of April. Thereupon the plaintiff’s attorney remailed the proofs in a letter of his own to the defendant’s agent, which, however, was not received by the latter untill April 16, 1892. The agent at once replied, claiming that the company was released, both because the proofs were not famished in time, and because there was a breach of the warranty as to the contents of farm. It will be thus seen that the insufficient proofs were returned to the plaintiff in ample time to enable him to comply with the requirements of the policy, and furnish formally sufficient proofs to the company within the thirty days. He failed to do so, and the proofs, owing to the admitted negligence of the plaintiff or his agent, did not reach the defendant until eighty-four days after the destruction of the premises by fire. We [349] are aware of no well considered decision, which would enable us to hold that there was a substantial compliance with the requirements of the policy. As there there can be no recovory on the conceded facts, no useful purpose can be subserved by remanding the cause. All the judges concurring,the judgment is reversed.