McIntyre v. Liverpool, London & Globe Insurance

BROADDUS, P. J.

This is a suit on a fire insurance policy, whereby respondent was insured in the sum of $1,000 on her household and kitchen furniture, “while contained in the two story and basement brick and frame roof dwelling and its additions, occupied for family residence,” number 1213 Broadway, Kansas City, Missouri. There was additional concurrent insurance of the property to the amount of $1,000, in another company. There was a fire on October 31, 1903, whereby the property was partially destroyed and damaged. It was shortly afterward removed to a storage house on Main street, where a second fire occurred. Plaintiff’s evidence showed that it was practically destroyed by fire and water at this second fire. Her evidence is to the effect that she notified Mr. George Kumpf, defendant’s agent at Kansas City that she had so removed the goods and he himself testified that he had knowledge of that fact. The agent testified that he had authority to write insurance and to consent to the removal of goods from the places where insured. Defendant offered to prove by Mr. Kumpf, that the rate for insurance, of property at the time in question was greater than the rate provided for in the policy, and that he did not have the authority to issue insurance on property in said storage house. The offer was refused by court.

The cause was submitted to a jury which returned a verdict for plaintiff in the sum of $900 upon which judgment was rendered, and defendant appealed. The main question relied on for reversal of the case is, that *92 the removal of the property from the place where insured before the second, fire avoided the policy.

Some of the authorities relied on by the appellant we will notice. “In an action on an insurance policy for the destruction of goods, the insurer set up a defense that the goods had been removed from the building without its consent endorsed thereon as required by the terms of the policy, and plaintiff claimed a waiver of the forfeiture. Plaintiff testified that he notified the agent of the defendant of his intention to remove the property, the agent informed him that the insurance would cost more money in the place to which the goods were moved and plaintiff stated to him that he had better fix the papers. Held, that this would not constitute a waiver of the forfeiture; that the evidence indicated that the insured depended upon the company’s agent to fix the insurance for him and thus constituted such agent his own agent and the company could not be bound by the neglect.” [Miller v. Insurance Co., 106 Mo. App. 205 .] This case is no authority in support of appellant’s theory that there was no waiver of the condition of the contract that the goods were not to be removed without the consent of the insurer. The ruling is placed upon the ground that the insured made the company’s agent his agent to obtain such consent and his neglect in that particular was the neglect of the plaintiff. There is nothing in the decision that can be construed to mean that such a condition of the contract could not have been waived by the agent. While there is no necessity for this court to either dissent or assent to what we have quoted from the opinion we do not wish to be understood as approving of what was said by the learned judge who delivered the opinion, for the reason that our conclusion is that the insured when he applied to the company’s agent to obtain such consent for a removal of the goods did not make such agent his agent and his *93 application should he construed as made to the company itself and the failure of the agent to give such consent was not the neglect of the insured but that of the company. The court, however, recognized as a general rule, that an agent with power to make contracts of insurance and to countersign and deliver policies has the power to waive a forfeiture. In Giboney v. Insurance Co., 48 Mo. App. 185 , it is asserted that: “It is an elementary proposition, that the place where personal property is insured is of the essence of the contract, and that if property is insured in one place the insurer is not liable if it is destroyed elsewhere.” This is but the assertion of a general rule that is consistent with all the decisions on the subject that we have examined. [Village of L’Anse v. Fire Assn., 78 N. W. 465 ; Bahr v. Insurance Co., 29 N. Y. Supp. 1031 .]

The Missouri decisions are to the effect, that although there may be a breach of a condition of a policy resulting from a removal of the goods insured, yet the insurer waives its right to refuse payment for a loss, where it has failed to cancel the policy and return unearned premium after notice of such removal. [Trust Co. v. Insurance Co., 79 Mo. App. 362 ; Miller v. Insurance Co., 106 Mo. App. 205 ; Thompson v. Insurance Co., 169 Mo. 12 ; McCollum v. Insurance Co., 67 Mo. App. 76 ; Fink v. Insurance Co., 66 Mo. App. 513 ; Millis v. Insurance Co., 95 Mo. App. 211 .]

It is contended that the court was in error in not permitting defendant to show that the rate of insurance was greater at the place where the goods were removed than at the place where insured and that therefore the agent had no authority to consent to such removal. But the law imposed upon defendant, when it received notice of such removal, to cancel the policy and return the unearned premium, and having failed in that duty, it will not be heard to deny liability un *94 der such circumstances and thereby profit by its own wrong.

The defendant contends that inasmuch as the language of the policy purporting, that “while located and contained as described herein and not elsewhere,” the insurance ceased ipso facto upon the removal. The italicized words and not elsewhere do not convey any further or different meaning to the other words locating the place where the goods were located, as without their use it is plain that the goods are- insured while in the place described and nowhere else.

The court submitted the case to the jury on the theory that if the goods were totally destroyed the defendant was liable, to the full amount insured unless they had. depreciated since the time of the issuance of the policy, in which event their verdict would be for $1,000 less such depreciation, or that if the goods were not totally destroyed plaintiff’s measure of damages would be the difference between the reasonable value thereof prior to the fire and the value immediately after the fire, and that in no event the jury could return a verdict in excess of $1,000. The defendant’s criticism of the instruction is not well founded. The cause was well tried. Affirmed.

All concur.