Opinion
No. 6881.
April 27, 1950. Rehearing Overruled May 19, 1950.
APPEAL FROM THE SCOTT COUNTY CIRCUIT COURT, R. B. OLIVER, III, J.
R. W. Hawkins, Caruthersville, for appellant.
Ward Reeves, Caruthersville, for respondent.
This appeal is from the judgment of the Circuit Court of Scott County, Missouri, sustaining defendant's (respondent's) motion for judgment on the pleadings. It was argued in this Court by appellant alone.
The petition, set out in full in the transcript, and in plaintiff's (appellant's) brief, was originally filed, on April 10, 1948, in the Circuit Court of Pemiscot County, and afterwards the case went to Scott County on change of venue.
The petition alleged that defendant insured plaintiff against loss by fire upon a Chevrolet truck for a term from March 12, 1947, to March 12, 1948, and that plaintiff sustained a loss to said truck by fire, on March 12, 1948, and defendant was liable therefor, under its policy; that plaintiff made demand on defendant and defendant denied liability and refused payment.
It is stated in the petition that the fire occurred between seven and eight o'clock, P.M., on March 12, 1948, and plaintiff contends that, even though the fire occurred after 12:01, A.M. March 12, 1948, defendant was liable to it, under paragraph 2 of his petition, which was as follows: "Plaintiff states that shortly after the fire, the defendant sent its adjuster to visit the premises and view the partially destroyed truck; and thereupon said adjuster agreed and acknowledged to the plaintiff that said truck was partially destroyed by fire, and that the loss and damage of plaintiff was the sum of $775.00 less the salvage; and the said adjuster contracted and agreed with the plaintiff, that if plaintiff would assign the certificate of title to said truck to the defendant; that the defendant would pay plaintiff the sum of $775.00. That in consideration of said contract and agreement, the plaintiff did, on the 27th day of March, 1948, legally assign his title to said truck to the defendant; that in pursuance to said contract and agreement the defendant took the possession of said truck and said certificate of title. That the plaintiff now refuses, although demanded, to pay plaintiff said sum of $775.00."
In paragraph 4, plaintiff prayed actual damages in the sum of $775.00, with interest thereon from March 12, 1948, and for 10% punitive damages, and an attorney's fee of $250.00.
In its answer, defendant first alleged that the policy was not in force, when the fire occurred. In paragraph 2 of its answer, defendant alleged that its adjuster had no power or authority to enter into an agreement, as alleged in paragraph 2 of plaintiff's petition.
In his reply to such answer, plaintiff denied that the fire occurred after the policy of insurance had expired, even though such fire occurred after 12:01 A.M. March 12, 1948, on account of ambiguity in the policy itself. The reply also alleged that plaintiff had a cause of action against defendant, because of what was done by defendant's adjuster, after such fire occurred.
In asserting that defendant's adjuster had the authority to do what he did do, plaintiff quotes, in paragraph 2 of his reply, a writing, attached to the policy of insurance, delivered to plaintiff, which was as follows:
"It is with great pleasure that we enclose your automobile insurance policy. We appreciate this business and with all our agents and adjusters, literally thousands, will so strive to serve you that you will Thank continue to insure with us and your local MIC Agent.
You "You now have the satisfaction of knowing that you are insured in a company that has Adjusters and offices nearby to serve you promptly wherever you may drive in the United States or Canada. Any General Motors Dealer will gladly put you in touch with the nearest MIC Adjuster. We welcome your suggestions and are happy to answer any questions you may have.
"Motors Insurance Corporation"
Appellant alleges that he relied on such writing and he adjusted his loss with the adjuster and assigned to him for defendant the title to his truck and never heard of any limit of the authority of such adjuster, and denied that the authority of such adjuster was so limited; and alleged that the adjuster agreed to pay the plaintiff $775.00 for defendant. So plaintiff alleged that he had a cause of action against defendant, by reason of what was done by defendant's adjuster after such fire occurred, even if we should regard the policy as having expired by its terms at 12:01 A.M. on March 12, 1948.
If the loss was one clearly within the terms of the policy, and within the time fixed by it, the adjuster possibly would possess the powers, in respect to such loss that the insurer would have. The language of 45 C.J.S., Insurance, § 1102, page 1338, would apply to whatever such adjuster did for the insurer, under such circumstances.
But, where the adjuster, through misinformation on his part, or for any other reason, undertakes to make an agreement, not strictly authorized by the insurance policy, and without a showing of sufficient authority to do so, we think the language used in another paragraph of 45 C.J.S., Insurance, § 1102, page 1339, more effectually covers the facts of this case and the pleadings in it, to-wit: "An adjuster's authority is usually limited, however, to the ascertainment and adjustment of the loss; and he has no power merely as such, in the absence of some evidence as to his authority, to alter the contract, or waive any of its essential conditions; nor does he have authority to impose liability on the company for damages which are plainly not covered by the policy."
No where in his petition, nor in his reply to defendant's answer, does plaintiff undertake to allege — much less prove — that defendant's adjuster actually had the authority to bind defendant by an agreement, not strictly within the policy itself.
The petition, therefore, failed to state a cause of action against defendant, and the trial court properly sustained defendant's motion for judgment on the pleadings, and his action must be approved.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.