Pelkington v. National Insurance

Wagnbr, Judge, delivered the opinion of the court. When the court struck out the replication to the defendant’s answer, the plaintiffs took a non-suit, and, failing to have the same set aside, they have sued out their writ of error. The petition was on a policy of insurance issued by the defendant, and the answer, by way of new matter and in avoidance of the action, stated as a special defense, that “it was an express condition of said policy, that if the assured should have, or shall hereafter make, any other insurance on the property hereby insured or any part thereof without the written consent of the company indorsed upon the said policy, * * * * theu the assured shall not be entitled to recover from the company any loss or damage which may occur in or to the property hereby insured, or any part or portion thereof. There was then an averment, that plaintiffs did take insurance from the Lamar Ins. Co. for $1,500 on the property insured by defendant, after the same had been insured by the defendant, and that, the written consent of defendant thereto was not indorsed upon the policy sued upon, for which reason it was claimed, that the policy was forfeited, and no recovery could be had thereon. The reply admitted, that the policy contained the condition set up as a special defense, and also admitted, that the written consent of the defendant to the making of the additional insurance was not indorsed upon the policy; but it alleged, that the indorsement was not made by reason of the fact that defendant, by its agent, who. had full authority from defendant for so doing,waived the performance of said condition, and, after being notified by plaintiffs of said additional insurance, failed and neglected to make the indorsement on the policy, and that said agent, after being duly notified of the additional insurance, assented thereto. The court, by its ruling in striking out the replication, vir [177] dually decided that it was absolutely necessary to obtain the written indorsement of the company’s assent to the additional insurance, before any recovery could be had. There are cases which undoubtedly sustain this position, but the tendency of the modern decisions is to relax and modify this stringent doctrine. It is emphatically averred, that the agent was duly notified of the subsequent and additional insurance, and assented to the same. Notice to the agent was notice to the principal, and the company was bound by that notice. After the company was notified, and made no objection, the assured had the right to suppose that it acquiesced and still continued the poliey. This very question was passed upon in Hayward vs. Nat. Ins. Co., 52 Mo., 181 in construing the same condition in this company’s policies, and it was there held, that, where the agent was notified of the additional insurance, the company was bound by such notice, and in the absence of any dissent a waiver of the written indorsement would be presumed. The case of Horwitz vs. Equitable Mut. Ins. Co. (40 Mo., 557) is also in point. In that case, the company sought to avoid its liability under a similar clause in its poliey because there was no written indorsement of a subsequent and additional insurance, but it was decided that it was the duty oí the company, upon being notified of the additional insurance, to indorse the same upon the policy of the assured or to notify him of the refusal of the risk, and that, having failed to do so, it would not be permitted to set up as a defense the failure to have sueh additional insurance indorsed upon the policy. "When the assured has notified a company that he has procured additional insurance, it is the duty of the company, if it does not intend to be further bound or to continue the risk, to express its dissent, and not allow the party to repose in fancied security to be victimized in case of loss. It is unconscientious to retain the premium and affirm the validity of the contract whilst no risk is imminent, but, the very momeut that a loss occurs, to then repudiate all liability and elaim a forfeiture. If the indorsement is not [178] made upon notice duly given, a waiver will be presumed in, the absence of any dissent. If a party by his silence directly leads another to act to his injury, he will not be permitted, after the injury has happened, to then allege anything to the contrary, for he, who will not speak when he should,will not be allowed to speak when he would. The judgment should be reversed, and the cause remanded. The other judges concur.