Sims v. State Insurance

Bliss, Judge, delivered the opinion of the court. The plaintiff recovered judgment in the Hannibal Common Pleas upon a policy of insurance, which was affirmed in the District Court. The case seems to have been sharply contested, and in exceptions to evidence and in the multitude of instructions to the jury given and refused, the points are developed upon which the defendant’s counsel seek to reverse the judgment. The assured were required by the policy to give notice of the loss fortliAvith, and Avithin three days to send to the office of the company a particular account of the loss, signed and sworn to by the assured. Notice was at once given, and an agent of the company appeared upon the ground, produced the usual blank for making the proofs, and giving the “particular account” of the loss, which was filled up under his directions and SAVorn to by E. W. Sims, as agent for the insured. This, it was claimed, was not a compliance with this requirement of the policy, but the court held othenvise. There is no doubt that, under policies with such a requirement, it is the duty of the assured to furnish a sworn certificate of loss; and the performance of such duty is a condition precedent to a recovery. (Ang. Ins., §§ 225-6; Col. Ins. Co. — 60 — v. Lawrence, 10 Pet. 507; Noonan v. Hartford Ins. Co., 21 Mo. 81.) The special objection to the certificate, as furnished, arises from the fact that it was sworn to by his agent, and not by the assured himself. Under ordinary circumstances I should deem this a fatal objection ; for it may with propriety he said that the owner is supposed to know not only his own- loss, but also any secret reason why he should not be paid. The company contracted that he should take the responsibility of the oath, and if he was the one with whom they had personally dealt, who had knowledge of the matter, he would be hound to assume such responsibility. But to insist on it in this ease would involve a defeat of the policy altogether. The insured was a resident of St. Louis, and the property was in Carroll county, under the exclusive management and control of the agent. The policy was obtained by the agent, the application was made and signed by him; the premium note was executed by him j he had other policies in the same company, obtained also as agent; in his whole correspondence with the company at their home office, and in his interviews with their agents, he acted as agent for the insured, and it does not appear that the latter wras known to the officers of the company, or knew anything about the policies, or whether he had any. Under these circumstances, if the proof is not to be made by this agent it can not he made at all; and the position assumed by counsel places the officers of the company in the attitude of issuing policies and receiving premiums, knowing from the nature of the case that no legal proof could be made of the losses if they should occur. We will not place them in that position, but, on the other hand, hold that proof and certificate made by the man with whom they had all their dealings, who was in sole possession of the property insured, and who alone knew the facts necessary to be embodied in the paper — who, in fact, was, as it were, insured as agent — is a compliance with this requirement of the policy. (Ayres v. Hartford Ins. Co., 17 Iowa, 176.) If we thought otherwise, we could not hold the policy forfeited for that defect, for the reason that the-company received the certificate, made no objection to it upon that account until the case came on to trial, long after the thirty days had expired; and, when pay — 61 — ment was refused, placed the refusal upon other grounds. (St. Louis Ins. Co. v. Kyle, 11 Mo. 278; Phillips v. Protective Ins. Co., 14 Mo. 220; Ayres v. Hartford Ins. Co., supra; Taylor v. Merchants’ Fire Ins. Co., 9 How., U. S., 300.) ■ Another defense is founded upon an alleged default on the part of the insured in paying his premium note. The policy expressly provided that when such note had been taken for a cash premium, any default in its payment should operate to suspend the company’s liability upon the policy until it should be paid. The note was due on the first day of April. The insured having also a policy upon a stock of goods that had some months to run, and having sold the goods on the 6th of April, wrote to the secretary requesting that the policy be canceled, and asking for an allowance for the time the insurance was to run. He then adds: “Am I indebted for insurance on tobacco? I can not find the policy, though I am sure there is something due. Please send statement, as I wish to settle it.” This was answered by the secretary under date of the 13th, as follows: “ Your favor of the 6th is at hand this A. M. We cancel your policies of insurance on merchandise and return unearned premium, which is $21.30. We find a note against you of $32.50 principal and $1.21 interest. Total, $33.70, less the amount of unearned premium due you, leaving a balance due us of $12.45, which you can remit with the inclosed receipt for unearned premium. By return of mail you will, also send us policy for cancellation. Hoping all will be satisfactory, we are,” etc. On the first mail after receiving this letter, Sims replied, inclosing the receipt, the $12.45, the policy on the merchandise, and asking the secretary to remit the note paid. But in the meantime — to-wit, on the night of the 13th — the tobacco had been burned, of which the company was at once notified. Afterward the $12.45 and the money due for the unearned premium was tendered back, and on hearing of the fire, the secretary had notified the plaintiff'not to send the $12.45. Supposing the existence of these facts, the court instructed the jury to find the issue made in regard to the payment of this premium note in favor of the plaintiff; and in this we think it committed no error. This is a case of forfeiture for — 62 — a want of promptness in paying the premium note ; and, if the law does not forbid, it certainly will not favor, but rather lean against, such forfeiture. It is hardly necessary, however, to invoke the aid of this familiar maxim, inasmuch as the payment o f the note was actually provided for before the fire. Whether we consider the letter by the insured on the 6th as a proposition whose acceptance on the 13th, with the application of the unearned premium, operated as an adjustment, or the proposition by the insurance company on the 13th, which was afterward accepted by the insured, in either case the note was provided for before the loss, and the vitality of the policy restored. If we were to suppose that a forfeiture had occurred by the -non-payment of the note, it is clear that if the company agreed to accept its payment in a particular way, and the proposition was at once and unconditionally accepted and complied with, the forfeiture was waived. No case has arisen where a forfeiture has been enforced under circumstances like the present. On the third day after the maturity of the note, the maker, not knowing how much would be actually due the company, proposes to pay, asking for a statement of the amount. The company at once applies upon the note the amount in their hands and directs him to remit the balance, which he does by the first mail. The waiver of the forfeiture was complete when they accepted his proposal to pay, etc., which was before the fire. It appears that the policy covered certain fixtures in the building belonging at the time to the insured, but which had been transferred to the owner of the realty, and, in making his proof, the plaintiff embraced these fixtures as well as the other property. Counsel for defendant claimed at the trial that if the oath was willfully false, with the design of receiving more than he was entitled to, it was a fraud upon the company, which forfeited the plaintiff’s right to recover anything; and the court, in an instruction submitted by them, sustained their view. If this conduct of plaintiff, as matter of law, was not susceptible of an innocent explanation, then, perhaps, we might disregard the finding of the jury upon it; hut we can not so hold, and, having found that there was no fraud in fact, their finding can not be disturbed. — 63 — There is one point, however, raised by the record, less technical than those we have considered. The insurance ivas upon plaintiff’s tobacco, in a certain building in DeWitt, Carroll county. In the application for the. insurance, and in answer to the question “ for what purpose the building was used,” the plaintiff replied, .“tobacco-pressing; no manufacturing.” 'The evidence shows that in a shed — an addition to the main building — the tobacco hogsheads were manufactured. This, it is claimed, was a concealment of the uses to which the building was put, was a breach of the warranty, and vitiated the policy. The plaintiff sought to prove that the business of making the hogsheads in which the tobacco was packed, was incident to and appertained to the business of pressing, and by general custom was included and understood to be included in the term “ tobacco-pressing,” without being specially mentioned. If such were the fact, there was no false warranty, and it was no more necessary for the plaintiff to state that branch of the business than any other. The officers of the company, in issuing the policy, should be supposed to know all the incidents of the business of the insured, and if there was any branch of it considered extra-hazardous, and which they were unwilling to cover by their contract, it should have been specially provided against. The law upon this subject has been recently considered by us in Archer v. The Merchants’ and Manufacturers’ Ins. Co., 43 Mo. 434, and it is quite unnecessary to review the general doctrine. Whether the preparation of the hogsheads was such an incident to the business as to be included in it, was a question of fact, and we have only to see if the subject was fairly presented to the jury. The jury were instructed that the application was a warranty as to the condition and occupancy of the premises, that, if false, would make void the policy, and that the words quoted were an undertaking that there should be no manufacturing in the premises. But they were also further instructed in these words : “No. 7. The jury will find for the plaintiff on the fourth ground of defense set up in defendant’s answer, if they find that the business of tobacco-pressing only was carried on in the building in which the insured property was contained, and that the only coopering done therein was that connected with, appertaining to, and — 64 — incident to the business of tobacco-pressing, although the jury may believe that said use for setting up of hogsheads was an increase of the risk.” Does this instruction present the question to the jury fairly? It seems to me not. It fails to present to their mind the trufe issue. First, for obscurity: the construction they might put upon it is that the court supposes that there is a class of coopering incident to the business, and they are to inquire whether the coopering complained of belongs to that class. The court seems to take for granted the main question in dispute. The sentence is obscure, and may bear another interpretation, but it is so drawn that the jury, especially ■ if inclined against the defendant, might very easily interpret it as assuming the chief proposition. Second, it does not give the jury to understand what facts they are to find in order to make any coopering incident to plaintiff’s business. The inquiry should be: whether it is so generally customary for those engaged in the business of tobacco-pressing to prepare their own hogsheads, and in the building where the business is conducted, that such preparation can properly be called an incident to the. business. The existence of such a custom is an affirmative proposition, and must be affirmatively found. To illustrate: coopering is necessary for the manufacture of flour, whisky, powder, etc., and, in a loose sense, is incident to the business. So box-making is, in the same sense, incident to various kinds of manufacturing; but the making of flour or whisky barrels, or powder kegs, or boxes, can not be said to be so incident to the manufacture of flour, whisky, powder, or the articles to be packed in the boxes, as to be included in a general term applicable to such manufacture, unless by a general custom they are prepared in connection with and as a part of the business. If it be the custom among country millers to make their flour barrels in the mill, then the term “flour mill” or “flour-malting ” may be properly held' to include' the necessary coopering ; but the existence of such custom should be clearly and distinctly put to the jury, and in no equivocal or ambiguous terms. The other judges concurring, the judgment will be reversed and the cause remanded.