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V A. Fyke, of Kansas City, E. L. Snider, , ed to let him have it. He, the attorney, then of Chicago, Ill., and Fenton Hume, of Kansas asked for a blank on which to make out a City, for appellant.

new proof and offered to furnish the kind of Noyes & Heath, of Kansas City, for re proof desired, but the adjuster refused saying spondent.

they were going to deny liability on the pol

icy and were not going to pay anything. It TRIMBLE, J. This is an action on a seems, however, that each side selected an policy of fire insurance consisting of $500 on appraiser, and they selected a third, and the goods consisting of hardware, jewelry, and three met, but only two of them agreed upon furniture, $100 on store furniture, and $200 the amount due, but the company did not pay on household furniture, all while contained that. So suit was brought. in a certain building in Kansas City. There [1, 2] Under the above and foregoing cirwere two trials, in each of which there was a cumstances, the company cannot defeat the verdict for plaintiff, but for some reason not insurance on the ground that the plaintiff disclosed by the record a new trial was herself did not sign the proofs of loss. Hicks granted after the first verdict. It is stated in v. Empire Ins. Co., 6 Mo. App. 254; German one of the briefs that it was because of in- Fire Ins. Co. v. Grunert, 112 Ill. 68, 1 N. E. formality in the verdict returned. However, 113; Lumbermen's Mutual Ins. Co. v. Bell, we are concerned only with the second ver- Extrix., 166 Ill. 400, 4. N. E. 130, 57 Am. dict, since it is from the judgment rendered St. Rep. 140. There was a waiver of proofs thereon that defendant has appealed. The of loss. Keeton v. National Union, 178 Mo. verdict was for plaintiff for the full amount App. 301, 308, 165 S. W. 1107; Wicecarver v. of the policy with 10 per cent. damages and Mercantile Town Mut. Ins. Co., 137 Mo. App. $80 attorney's fees for vexatious refusal to 247, 258, 260, 117 S. W. 698. And it is not pay.

necessary to plead waiver in order to show The first contention is that plaintiff is not and rely thereon in insurance cases. Andrus entitled to recover because her proofs of loss V. Fidelity Mut. Life Ins. Co., 168 Mo. 151, were signed and sworn to by her agent, and 67 S. W. 582.

[3] There was no not by herself personally.

error in reading the The goods were kept in Kansas City. The the transcript of his testimony given at the

testimony of Stanley Lyons as contained in plaintiff lived in California. At her request former trial. It was conceded to be a correct her father in Kansas City applied for the transcript, and the evidence shows he was, at policy. It was issued and sent by defendant the time of the trial, beyond the jurisdiction to plaintiff where she lived. When the fire of the court, and the plaintiff had made occurred, she, upon hearing of it, had an unavailing efforts to locate him. Miller v. attorney out West to notify the company. Geeser, 193 Mo. App. 1, 180 S. W. 3; Showen It paid no attention to the notice. She then v. Metropolitan St. Ry., 164 Mo. App. 41, requested her father to employ an attorney 148 S. W. 135; Augusta Wine Co. v. Weipto take the necessary steps to collect the pert, 14 Mo. App. 483; Davis v. Kline, 96 insurance. The father made 25 or 30 calls Mo. 401, 407, 9 S. W. 724, 2 L. R. A. 78. on the adjuster to get an adjustment and [4] There was evidence tending to show made 8 or 10 appointmcts with him to go the property was worth at the time of the out and look over the loss. Finally the ad-fire more than twice the amount of the juster came out and hastily looked over the insurance, and that the fire caused practicalscene of the loss. The father was compelled ly a total loss. The goods were not subject to go north, and left only the attorney to to fluctuation or change, as they were not look after the matter of collecting the in- being sold or used in trade, but were stored,

The adjuster informed the attor- and there was no evidence of any deprecianey that no formal proof would be required tion. · The policy fixed the value of the propthat the company would either offer a settle- erty at the time of the insurance. Hilburn v. ment or deny liability. Nothing being done, Phenix Ins. Co., 140 Mo. App. 355, 124 the attorney, having waited as long as he S. W. 63. thought he should, made out a proof of loss, [5] There was evidence from which the signing and swearing to it himself, upon a jury could find a vexatious refusal to pay, blank obtained from the adjuster. Objec- and we would not be warranted in setting tions were made to the signing of the proofs aside their verdict in that regard. by an agent, and not by plaintiff herself. The point that error was committed in Whereupon the attorney went to the adjust- plaintiff's instruction 1 is answered by what er and asked for the proofs of loss, so that has been said regarding the proof of loss. he might send them to the plaintiff for her The judgment is affirmed. signature and affidavit. The adjuster refus- All concur.


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(222 S.W.) STATE ex rel. CHORN, Superintendent, et| 7. Insurance em 197(5)-Whether insured real. v. HUDSON. (No. 13394.)

quested cancellation of policy held for jury.

In an action on a premium note given to (Kansas City Court of Appeals. Missouri.

cover six years' premiums, the entire note beJune 14, 1920.)

coming due on failure to pay an assessment

after notice, whether insured requested a can1. Trial On 150—Failure to read exhibits to cellation, as he had a right to do under the

jury not ground for demurrer to the evi- policy, held for the jury. dence.

Where record showed that exhibits were 8. Evidence @ww441 (13)-Right of cancellation regularly introduced in evidence, and many of

to be determined from terms of contract, the facts shown in the exhibits were admitted and not from oral promises. in the trial, and witnesses were examined with The right of an insured to cancel a fire reference to the matters contained in them, policy should be determined from the terms of held, that there was no sufficient reason for the contract, and not from any oral promises sustaining a demurrer to the evidence on the made by any officers of the company at the ground that they were not formally read to time the contract was entered into. the jury. 2. Insurance en 141(1)-Policy recognized by

Appeal from Circuit Court, Boone County; insurer and insured not void, although not David H. Harris, Judge. properly countersigned.

"Not to be officially published.” Where a policy of insurance was recognized

Action by the State, on the relation of by the insurer and the insured as a valid obliga: Walter K. Chorn, Superintendent, and others, tion, neither could rely on any claim that it was void because noť countersigned by the against C. E. Hudson. Judgment for defendlocal agent.

ant, and plaintiffs appeal. Reversed and re

manded for new trial. 3. Bills and notes ww443(3)-Defendant could

not complain that note was held as collat. Russell E. Holloway, of Columbia, for aperal by one of plaintiffs.

pellants. In an action on a note, defendant can- Harris & Price, of Columbia, for respondnot complain that the note is held as collateral, ent. where both the payee and the one alleged to be holding it collaterally are parties plaintiff

TRIMBLE, J. This is an action upon an and are agreeing as to their respective interests.

insurance premium note dated October 2,

1915, given by the defendant to the Farmers' 4. Insurance em 197(2) Contract providing 'Town Mutual Fire Insurance Company of

that note covering premiums for six years Mexico, Mo., for $216, in payment of the should become due on failure to pay an as- premium for a period of six years on an insessment valid.

surance policy, issued concurrently with the Agreement that the entire amount of a premium note covering six years should become due execution of the note, and covering defendon failure to pay assessments levied after no- ant’s mercantile stock, with insurance to an tice was valid, and insured, having failed to amount not exceeding $1,200. At the close pay an assessment within the time provided, of all the evidence defendant's demurrer could not escape payment of the entire amount, thereto was sustained, and a verdict for dewhere he had not canceled his insurance, mere- fendant was directed. The verdict being rely because the insurance was suspended in ac- turned, judgment was entered thereon, and cordance with the contract, or the company plaintiff's have appealed. afterwards became insolvent.

The suit is by the receiver of the insur5. Insurance Cm 226–Cancellation only on con- ance company, and also the North Missouri

sent, except on strict compliance with condi- Trust Company, a banking corporation, the tions provided for cancellation.

latter having a special property interest in A contract of insurance having become ef- the note by reason of the fact that the insurfective, neither the insurer nor the insured ance company had. turned over the note in could cancel or terminate it without the oth: question to it, along with a number of other er's consent, except on strict compliance with notes, as collateral security for a loan to the the conditions provided in the policy for cancellation.

insurance company. The execution and de

livery of the note as an insurance premium 6. Insurance Com 197(5)-Whether notice of note is admitted by the answer. The deassessment was mailed held for jury.

fenses relied upon therein will be stated as In an action on a premium note, which be- they are respectively passed upon herein. came due on failure to pay an assessment on

The note provided that the $216 should be notice, where defendant did not admit that notice of assessment was mailed, or that he paid “in such portions and at such times as received it, held for the jury to say whether the directors of said company shall demand plaintiff's oral evidence that notice of the as

for payment of losses and expenses, as resessment was mailed to defendant was true quired and provided for by charter, by-laws,

and rules of said company.” It further pro

or pot.

Cow For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

vided that the note, “or such part thereof as, insured, and 15 per cent. or $32.40 of the Shall remain unpaid at the expiration or ter- amount of the note was paid and credited mination of said policy, shall be returned to thereon, on October 2, 1915. On July 15, the maker, provided all assessments on this 1916, the directors of said company made note and all liabilities of the maker to said an assessment of 25 per cent. on said note, company have been paid"; that, "if default amounting to $45.90, and the plaintiff introis made in payment of this note as above pro- duced evidence tending to show that notice vided, then the whole of this note shall be- of such assessment was duly mailed. On come immediately due and payable." The September 5, 1916, the insurance company by-laws provided that 15 per cent. of the note wrote defendant, calling his attention to the should be paid in cash at the time of its assessment of $45.90 levied on July 15, 1916, execution and the issuance of the policy, and and saying they were calling his attention that the remainder of said note should be for the third time to the assessment past due payable at any time and in part or in whole and unpaid, and demanding its payment in upon an assessment made whenever deemed five days; otherwise, they would be obliged necessary to pay losses, expenses, or other to enforce collection of the assessment. liabilities of the company. This initial pay- Upon a report made by the company to the ment of $32.40 was paid at the time of the superintendent of insurance on September 9, note's execution and delivery, and was cred- 1916, the latter, deeming that the company ited on said note. By the terms of the pol- had become insolvent, applied to the circuit icy, the insured, upon acceptance thereof, court of Audrain county for the appointment becomes a member of the mutual insurance of a receiver, and one was appointed on company, and is governed by its articles of September 16, 1916, and the company was association and by-laws which become a part enjoined from doing further business. On of the contract.

September 25, 1917, the court, upon a proper Under section 4, article 3, of the by-laws, hearing and finding, ordered a levy of 100 the amounts assessed upon each note shall cents on the dollar of all unpaid balances on be due and payable within 30 days after no- assessment premium notes of the company, tice to the maker has been deposited in the and directed the receiver to collect same. post office, postage prepaid, or delivered to Thereafter defendant was notified that the him in person. Section 5, article 3, of the balance on said note, $183.60, was due, and by-laws provides that, if the maker of any payment thereof demanded. According to denote neglects or refuses to pay the sum so fendant's evidence, he wrote in answer to assessed upon him for 30 days after the mail. this demand, asking what they would take ing or delivery of said notice, the directors for the note. of said company may sue for and recover the whole amount of his premium note held by of the note, and the contract made by the

It will be observed that under the terms the company with costs of suit. It further provided that the party so in default should by-laws and policy, and the acceptance of the lose all benefits and advantages of his insur- l latter by defendant, the assessments were to ance during the term of such default and become due in 30 days after notice thereof, nonpayment, and notwithstanding shall be and if default were made in the payment of liable and obliged to pay all assessments that said assessments the whole note should bemay be made during the continuance of his come due, and the note could be collected, policy of insurance, provided the full amount with costs of suit. The 25 per cent, assesshas not been recovered by suit. But no per- ment was made by the directors on July 15, son should be liable for a greater amount 1916, and the 30 days were up on August 15, than the face of his note. Section 4 of arti- 1916. So that it is plaintiffs' contention the

whole note became due when the defendant cle 4 of the by-laws provided that the

failed to pay the assessment by August 15, "insurance may be terminated by request of in- 1916, and that when the court, in control of sured or by the company, on given notice to the receiver, made a levy of 100 cents on the that effect, but such cancellation shall not im- dollar on the assessment notes, and authorpair the right of this company to recover any ized the receiver to sue therefor, the obligaexisting claims on the note."

tion of the defendant to pay the balance on The policy provided that it should

said note, to writ, $183.60, became complete.

The defendant, however, claims that on "be canceled at any time at the request of September 7, 1916, he sent to the insurance the insured, or by the company by giving five company a check for $45.90 in payment of days notice of such cancellation. If this poli- the 25 per cent. assessment levied on the cy shall be canceled as hereinbefore provided,

the premium having been actually paid, notes by the directors July 15, 1916, and that the unearned portion shall be returned on sur- | he wrote the company a letter, saying he did render of this policy * this company re- not want the insurance longer, and asked the taining the customary short rate.”

company to cancel the insurance. No such

letter was introduced, nor do plaintiffs conAs heretofore stated, the note was dated, cede that such was written. The only evi

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(222 S.W.) fendant to that effect. Defendant admits he payment thereof merely because the insurdid not demand the return of bis premium ance was suspended or the company afternote, nor did he return the policy to the com- wards became insolvent. Contracts of the pany. Defendant introduced in evidence his character herein dealt with are valid, and check for $45.90, drawn on the Bank of the rights of the parties are to be determined Hartsburg, payable to the insurance com- according to the terms thereof. Sherman v. pany, and the evidence tends to show that Frasier, 112 Iowa, 236,.83 N. W. 886; Garlick it did not go through clearing house or bank- v. Mississippi Valley Ins. Co., 44 Iowa, 553 ; ing circles from Mexico to Hartsburg, but Continental Ins. Co. v. Phipps, 190 S. W. was presented by some one at the bank and 994; Carlock v. Phønix Ins. Co., 138 Ill. 210, there cashed on September 19, 1916. This 28 N. E. 53. The fact that the contract prowas four days after the insurance company vides for a suspension of the insurance durhad been placed in the bands of the receiving the default does not release the defender. It purported to bear the indorsement of ant from the obligation to pay the note when the insurance company by Roy J. Maybee, the contract so provides. Home Ins. Co. v. but there was no indorsement of the receiver Hamilton, 143 Mo. App. 237, 128 S. W. 273; thereon.

Continental Ins. Co. v. Phipps, 190 S. W. [1] Defendaut makes the point that the de- 994; American Ins. Co. v. Klink, 65 Mo. 78; murrer to the evidence can be sustained on Continental Ins. Co. V. Burks, 207 S. W. the ground that the exhibits which the rec-847; Minnesota Farmers' etc., Ins. Ass'n, v. ord shows were introduced in evidence, were Olson, 43 Minn. 21, 44 N. W. 672. The susnot formally read to the jury. But this we pension of the policy, brought about by the regard as untenable. The execution of the failure of the party defending to perform note and the policy of insurance, and its ac- some condition of the policy, cannot be relied ceptance by the defendant, were admitted in upon, because to permit that would be to althe answer, and many of the facts shown in low one to take advantage of his own wrong the exhibits were also admitted in the trial, and default. Huntley v. Perry, 38 Barb. (N. and witnesses were examined in reference to Y.) 569; American Ins. Co. v. Klink, supra; matters contained in them. The record St. Paul, etc., Ins. Co. v. Neidecken, 6 Dak. shows they were regularly introduced in evi- | 494, 43 N. W. 696. The contract of insurdence. Each side made a statement to the ance having become effective, neither could jury of its side of the case, and the trial cancel or terminate it without the other's was conducted in such way as to render un consent, except upon strict compliance with justifiable any such theory that the mere the conditions provided in the policy for can. failure to read the exhibits (which to a large cellation. Home Ins. Co. v. Hamilton, 143 degree contained only legal matters for the Mo. App. 237, 242, 128 S. W. 273. court) was a sufficient reason for sustaining

[6] The defendant does not admit that nothe demurrer.

tice of the 25 per cent. assessment levied by [2] The defendant attempts to justify the the directors on July 15, 1916, amounting to giving of the demurrer upon the ground that $45.90, was mailed to him at the time of its · the policy was void ab initio, and no consid- levy, nor does he admit receiving said notice, eration, in the way of insurance, ever exist- and plaintiffs' proof that such notice was ed, because it was not countersigned by the mailed consisted of oral testimony to that local agent at Claysville and was not other effect. Hence, even if the whole of the note wise properly signed; but the policy was did become due and payable, owing to the derecognized by both parties as an obligation, fault in not paying said assessment by Auand neither could rely on any claim that it gust 15, 1916, and even if on account there was void.

of plaintiffs would be entitled to recover, [3] Neither can the demurrer be sustained still plaintiffs were not entitled to a directon the ground that the note was held as col-ed verdiet in their favor, since it would be lateral by the North Missouri Trust Com- a question for the jury to say whether plainpany. Both of these are parties plaintiff to tiffs' oral evidence that notice of the assessthe suit, and the petition states the capacity ment was mailed to defendant was true or in which each is suing. If the trust com. not. pany has a special interest in the note, that [7] It will be observed, however, that, alcan make no difference to defendant as to though the note says, if default is made in whether he should be compelled to pay it in the payment of an assessment, the whole of this suit, since both are parties plaintiff and the note shall become immediately due and are agreeing as to their respective interests payable, yet the insurance company did not therein.

elect to treat the note as being fully due, but, [4, 5] Unless defendant paid the assess- long after the default, wrote asking only for ment of $45.90 levied by the directors within the payment of the assessment; and in this the time provided by the terms of the note connection the by-laws say the directors and contract, then the whole note became “may” sue, and the petition alleges that the due and payable; and unless the defendant directors "might" sue, for the whole. Concanceled his insurance, he cannot escape the sequently, even if by the terms of the note a failure to pay an assessment does renders and that no check or communication of any the whole note due, it may be a question kind was received from defendant. Hence whether the company, by failing to insist up- the question of whether the defendant ever or the whole note being due and asking only requested a cancellation (if a mere request for the assessment, did not elect to treat the be sufficient to effect a cancellation) was a note as not being wholly due, thereby leaving matter for the jury to determine, and not for insured with the right, upon paying all that the trial court to decide on a demurrer to was then demanded of him, to cancel the pol- the evidence. A peremptory instruction, icy the same as if he had promptly paid the therefore, could not be given under the cir. assessment. On the other hand, the com- cumstances of this case. Gannon v. Laclede pany's waiver of the right to treat the whole Gaslight Co., 145 Mo. 502, 516, 517, 46 S. W. note as becoming due could well be deemed 968, 47 S. W. 907, 43 L. R. A. 505; Seehorn to be made on the condition that the insured v. American National Bank, 148 Mo. 256, 263, continued, instead of terminating, his policy. 49 S. W. 886; Vincent v. Means, 184 Mo. 327, And if, as defendant claims, he did request 341, 82 S. W. 96; Printz v. Miller, 233 Mo. a termination thereof, there is no evidence 47, 49, 135 S. W. 19; Milliken v. Thyson Com. of any consent on the company's part to such Co., 202 Mo. 637, 655, 100 S. W. 604; Wolff, termination after insured's default had oc-Adm'x v. Campbell, 110 Mo. 114, 19 S. W. curred. Besides, there is an intimation in 622. the record that other losses had occurred in

[8] In addition to this there is evidence in the meantime which the company was unable the case from which the jury could find that to pay, and it may be a question whether defendant himself regarded the note as be the mere failure to insist upon the note being an existing obligation against him after ing wholly due then would permit the de- he claims to have canceled the insurance. fendant to pay the assessment that was then long past due and escape the payment of the As to this right of cancellation, it should be whole note by requesting a termination of observed that it should be determined from his insurance.

the terms of the contract, and not from any These matters, while perhaps suggested, oral promises made by any officers of the are not dealt with in the briefs, and we do company at the time the contract was enternot pass upon them. For, even if the note ed into. Hence evidence of such oral promwas not treated as wholly due upon the de- ises should not have been admitted. And as fault in the payment of the July assessment, to the $45.90 which defendant claims to have yet, if defendant did not terminate his insur- paid, if it did get into the hands of the comance, the levy of 100 cents on the dollar by pany before the receiver was appointed or the court in the receivership would entitle if the receiver got the benefit of it, this the plaintiffs to a recovery of whatever was would not defeat recovery, if there was no yet due on the note. And whether defend- cancellation, but the $45.90 would then be ant ever requested a termination thereof was credited on the note, and judgment would a question of fact depending for its establish- go for the balance. ment on the oral testimony of defendant. The judgment is reversed, and the cause is The testimony on behalf of plaintiffs tends remanded for a new trial. to show that no such request for cancellation All concur.

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