American Central Insurance v. Simpson

Phillips, J. By the terms of this certificate it became a part of, and is necessarily connected with, open policy number 139,827.- The policy and the certificate are one contract under the terms of the policy and certificate as thus issued; there is no insurance of property belonging to others than the plaintiff, and property stored by him in the warehouse is not included in' the terms of the policy. While it is apparent from the testimony of the plaintiff and the agent, Tutliill, that it was the intention to include all the property contained in the warehouse and have the same covered by the insurance, that intention was not carried out in the execution of the certificate or by the terms of the policy. A court of law can not reform the contract.although there is sufficient evidence in this record on which a court of equity would do so. The plaintiff 'made proof of loss in which he specified his property destroyed and its amount, ag well as property owned by others that was in his warehouse and destroyed, and the value thereof. JNo copy of the open policy was ever delivered to the plaintiff, and the company can not lie permitted to retain that policy in the hands of its agent, and the plaintiff uninformed as to its terms. The company is estopped from claiming non-compliance with its terms as to proofs of loss, and even were that not the ease at the time of the receipt of the proof of loss, it was designated in the letter of the general adjuster. After its receipt, that formal notice of loss was received, but no objection made as to form of proof of loss, and in that letter it was pointed out that the policy did not cover property stored in the warehouse belonging to others than plaintiff, and called on the plaintiff to submit tb an examination on oath, and designated the place when that examination was to take place as being at the office of the company in the city of St. Louis. The third letter from the adjuster to the plaintiff informed him that the company would adhere to what was said and demanded in their second letter, and in addition thereto, demanded that he should submit to a second examination at the hotel in Anna. The defendant had no right to require the plaintiff to bring his books and go to the office of the defendant company in another State and there be subjected to an examination on oath. To admit that rule it would apply with equal force "to every foreign company doing business in the State, and persons insured would be harassed and put to cost and expense in traveling to the general office of the company at points at such a distance that the benefit that he would derive from such insurance would be destroyed; and when the plaintiff was notified by the third letter that the company adhered to its demands made in the second letter, and demanded that he should submit to a second examination, the plaintiff would not have been prejudiced had he refused to submit to that examination as a second examination, when no demand for a first examination had been made that it was his duty to comply with; but when he went to the hotel in Anna and insisted that his attorney should be present before he would submit to the examination, it was a reasonable condition that ho had a right to require, and if that was denied him by the adjuster he would he justified in declining to submit to the examination; and there is evidence in the record to authorize the court to find that the privilege of having his attorney present was denied him. The plaintiff is entitled to no consideration or benefit by refusing to receive the letter addressed to him of date February 20th; by the terms of the policy lie owed the duty of submitting to arbitration, difference that might arise between them. By the legislation in this State it is required of all foreign insurance companies doing business in this Slate to designate some agent in this State upon whom process can be served. The object and purpose of that legislation is that persons in this State holding msnrance by foreign companies shall not be compelled to resort to other jurisdictions and travel long distances from the place where the fire occurs, and be at expense in procuring his witnesses to travel long distances; that protection of r citizen in this State ought not to be destroyed by implication; and the same reason—that a party can net be compelled to go away from the State to be subjected to an examination—should preclude the company from requiring that one insured should go out of the State for purpose of arbitration and to submit his proofs, A clause in a policy that req aired snch an act as a condition precedent to a right of recovery would be against public policy and'void, and when the contradi is silent in that regard, no higher right would exist by reason of a notice and demand for compliance therewith. The letter of February 20th must be held to be duly transmitted and received, but the notice to thé appellee to submit to arbitration at the general office of the company in tlie city of-St. Louis, in the State of Missouri, was not a notice that the insured was compelled to "accede to. It was not error to refuse to hold the second and fourth propositions submitted by the defendant to the court. We do not find that the court excluded evidence that should have been admitted, nor was there error for which this cause ought to be reversed by reason of the admission of evidence. The defendant excepted to the judgment of the court and entered a motion for a new trial, but assigned no specific reasons why the new trial should be allowed. Neither in the motion nor in the assignment of errors is it claimed that a judgment was entered for a greater amount than the evidence showed the plaintiff entitled to, but that he was not entitled to recover anything; Under the evidence the plaintiff was entitled to recover. The third assignment of error is not sustained and the judgment is affirmed. Judgment effirmed.