Schulter v. The American Central Ins. Co.

• Decision Date: 28 February 1876
• Parties: MATTHIAS SCHULTER et al., Respondents, v. THE AMERICAN CENTRAL INSURANCE COMPANY, Appellant.
• Court: Missouri Court of Appeals

1 Mo.App. 285

MATTHIAS SCHULTER et al., Respondents, v. THE AMERICAN CENTRAL INSURANCE COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

February 28, 1876

Where there is no question of fraud, it is not error to refuse to instruct the jury in a suit on a policy of fire insurance that the matters sworn to by the assured in his examination by the agent of the company, after the fire, according to the provisions of the policy, were presumptively true for the purposes of the case at bar.

APPEAL from St. Louis Circuit Court.

Affirmed.

Rankin & Hayden, for appellant, cited Hoffman v. Western Mutual Ins. Co., 1 La. An. 216.

E. Peacock and Cline, Jamison & Day, for respondents, cited: Marion v. Ins. Co., 35 Mo. 148; Wells v. Halpin, 59 Mo. 93.

OPINION

BAKEWELL J.

Plaintiffs sue to recover the amount of a policy of insurance covering their stock in trade, being wines and liquors.

The answer admits the insurance, and, after denying the other material allegations in the petition, alleges that the greater part of the goods insured were abstracted and disposed of in such a manner as not to be consumed or injured in a way to make defendant responsible. On the trial the plaintiffs offered evidence tending to show that the whisky in question had been destroyed by an accidental fire; that the heat was excessive; that a considerable number of the barrels in the first and second stories were totally destroyed, and that the missing whisky, in the barrels that remained, evaporated, or was otherwise destroyed by fire. Defendant admitted, on the trial, that the fire had occurred at the time and under the circumstances alleged, and that a considerable portion of the goods had been destroyed by fire, defendant contending only that a large quantity of whisky, which the plaintiffs claimed had been destroyed by fire, was not so destroyed, but that this part of the stock, amounting to several thousand dollars in value, had been, as alleged in the amended answer, abstracted and removed before the fire took place; and defendant introduced evidence tending to prove these facts. It appeared that, just after the fire, Dewey, an agent of the insurance company, had visited the premises with Schroeder, the husband of a woman beneficially interested in the property, and whose trustee is one of the plaintiffs, and Schulter, the other plaintiff, was with them. These three men, from the appearance of things, came to the conclusion amongst themselves that some one had, just before the fire, entered the store, removed or poured on the floor a large portion of the liquors, and then fired the store. Upon Dewey telling Schroeder and Schulter that he wanted their affidavits, under that clause of the policy which provided for statements or examinations of the assured after a loss, they made certain affidavits, which were offered in evidence by the defendant on the trial.

The affidavit of Schulter, so far as it relates to the loss, is in these words: " I visited the store first, after the fire, Monday morning, 20th inst., between eight and nine o'clock. I entered the store, and I then discovered that the bungs were out of most of the barrels. These bungs were in the barrels when I left the store on Saturday. I think the store was set on fire. I believe that some person unknown to me took the hose and drew the liquor from the barrels permitting it to run on the floor. We kept hose in the store for the purpose of...