Hackett Bros. v. Philadelphia Underwriters

ELLISON, J. This is an action on two policies of fire insurance, the petition stating a case on each policy in separate counts. The judgment below was for plaintiff. Pleading: answer: amendment The defendant filed an answer setting up several matters of defense, among them being that the property was vacant when insured and afterwards; that it was not completed when insured and that workmen and mechanics were engaged at work therein afterwards. All being contrary to the terms and conditions of the policy. After-wards an amended answer was filed in which these defenses (which are relied on here) were omitted. Defendant seems to regard that he had the right to amend his answer by tacking the amendment onto the original and thus have the complete answer partly in one and partly in another paper. This was not the proper view of the matter. The amended answer should have contained the whole defense. [20] -:-: issuestried. [19] But plaintiff at the trial proceeded upon the assumption that the matters pleaded in the original answer were issues [20] in the case, and indeed, those were the principal matters which engaged the parties, the court and the jury. Evidence was heard and instructions given on those issues. It is now, therefore, too late for plaintiff to make such point. See Hilz v. Railway, 101 Mo. 36; Hill v. Drug Co., 140 Mo. 433; Pope v. Ramsay, 78 Mo. App. 157. Insurance: vacancy: knowledge of agent: waiver. 2. The main points of defense are that the house was vacant without consent of the company and that mechanics worked in the building without defendant’s consent. It is undoubtedly true that if a house is vacant, or becomes vacant where the policy requires that it shall be and remain occupied there can be no recovery for loss. Cook v. Ins. Co., 70 Mo. 610; Craig v. Ins. Co., 34 Mo. App. 481. Blit if the agent of the insurance company who takes the insurance knows that the house is vacant at the time of the insurance and nevertheless delivers the policy and collects premium, it is a waiver of such vacancy and can not be insisted upon by the company. Thackery v. Ins. Co., 62 Mo. App. 293; Prendergast v. Ins. Co., 67 Mo. App. 426. In this case the question of fact as to the agent’s knowledge was submitted to the jury in direct terms. There was ample evidence justifying the submission of such question. Indeed, both sides submitted it. -: building in course of construction: second policy: knowledge of agent. But in this case the building was in course of construction and there was a clause in the first policy permitting the vacancy for sixty days in which to complete the building. It was not finished in that time. The evidence, however, tended to show (and since the verdict we will assume it to be true) that defendant’s agent knew of this fact and after the the time had expired he issued the second policy in suit in which the first policy is referred to and recognized.. "With this knowledge he not only [21] clid not take steps to cancel the first policy, bnt on the contrary, as just stated, issued another in recognition of it. In such circumstances the policy was not avoided. McCollum v. Ins. Co., 67 Mo. App. 76. —: mechanics’ working: knowledge of agent. 3. So in regard to the question of mechanics laboring in the building after the issuance of the policy and the expiration of permit. If defendant’s agent, at the time the policies were issued, knew that . ' the building was incomplete and was in process of erection, then the fact that workmen were at work therein and so continued would not avoid the policies. The case was properly submitted on instructions for each party, which clearly presented the issues involved and hence we affirm the judgment. All concur.