Bush v. Missouri Town Mutual Insurance

ELLISON, J. — This is an action on a policy of fire insurance. The judgment in the trial court was for plaintiff. Defendant insists on four points for reversal: First. Plaintiff’s failure to keep and produce a cash book. Second. His failure to keep and produce a book showing purchases and sales for cash and credit. Third. Failure to keep such books and his inventories either in an iron safe, or in some place secure from a fire which would destroy the building injured, when it was not open for business. Fourth. Taking out other insurance without the consent of the insurer. Plaintiff seeks to avoid these points by the contention that defendant’s agent had knowledge of the kind and character of books which plaintiff kept and where they were kept. That he knew where the inventory was kept by plaintiff and that he knew that plaintiff did not have an iron safe. That he told plaintiff that the books and inventories he had and the place where he kept them were sufficient and that with this understanding plaintiff paid the premium to defendant’s agent and accepted the policy in suit. Many instructions' were given on this line of defense. Defendant’s instructions were drawn on the theory that if the plaintiff failed to keep the books required by the policy he could not recover, but the court amended them by adding a qualification that [158] these matters might be waived by the defendant’s agent. If the evidence in behalf of plaintiff is to be believed, the defendant’s agent was fully advised by plaintiff of his mode of doing business, of the character of his books and how and where they were kept, and of the fact' that he did not keep an iron safe. That the agent assented to this and with this knowledge consummated the insurance. We are therefore only left to consider the authority of the agent to waive these provisions. The agent solicited the insurance, wrote the application, delivered the' policy and collected the premium. Such an agent has authority under the later rulings in this state to make the waiver, or, as it may be expressed, to create the estoppel. Williams v. Ins. Co., 73 Mo. App. 607; Rickey v. Ins. Co., 79 Mo. App. 485. And it is now held that though the authority of the agent is limited and knowledge of the limitation is brought home to the assured yet the acts of the agent are considered those of the company itself and they may bind the company though exceeding the limitation. James v. Ins. Co., 148 Mo. 1; Springfield Steam L. Co. v. Ins. Co., 151 Mo. 90. These cases overruled Jenkins v. Ins. Co., 58 Mo. App. 210 and Shoup v. Ins. Co., 51 Mo. App. 287, and like cases. It is, however, insisted that the provision of the policy against other insurance, was violated by plaintiff and that the policy was thereby avoided. But there was a three-fourths value clause attached to the policy as a “rider” in the following words: “Three-Eourths Yalue Clause. It is a part of the consideration of this policy, and the basis upon which the rate of premium is fixed, that in the event of loss, this company shall not be liable for a greater amount than three-fourths of the actual cash value of the property covered by this policy at the time of such loss, and, in case of other insurance, whether policies are concurrent or not, then for only [159] its pro rata proportion of such three-fourths value. Total insurance permitted is hereby limited to three-fourths of the actual cash value of the property hereby covered and to be concurrent herewith.” We had occasion to consider a clause of like character to this, though expressed in broader language, in Dolan v. Ins. Co., decided at this term, and we there held the clause to be a permit for other insurance up to the three-fourths limit; the clause in this “rider” reading: “Total insurance permitted is hereby limited to three-fourths of the actual cash value of the property hereby covered and to be concurrent herewith,” meaning that permission is thereby granted the assured to procure that amount of insurance. Palatine Ins. Co. v. Ewing, 92 Fed. Rep. 111; Ins. Co. v. Bussell, 48 S. W. Rep. (Tenn.) 703. The instructions placed the case before the jury in accordance with the rules now prevailing in this state relative to actions on insurance policies. The judgment will be affirmed. Smith, P. J., concurs; Gill, J., absent.