The State ex rel. Burton v. Allen

• Citation: 278 S.W. 772,312 Mo. 111
• Decision Date: 22 December 1925
• Docket Number: 25759
• Parties: THE STATE ex rel. CHARLES R. BURTON v. WILLIAM H. ALLEN et al., Judges of St. Louis Court of Appeals
• Court: United States State Supreme Court of Missouri

278 S.W. 772

312 Mo. 111

THE STATE ex rel. CHARLES R. BURTON v. WILLIAM H. ALLEN et al., Judges of St. Louis Court of Appeals

No. 25759

Supreme Court of Missouri

December 22, 1925

Opinion of Court of Appeals quashed (in part).

Abbott Fauntleroy, Cullen & Edwards for relator.

(1) Instruction 4, approved by the Court of Appeals, declares that any fraudulent misrepresentation as to the value of the property destroyed, made in the proofs of loss with intent to defraud, voids a fire insurance policy regardless of whether the misrepresentation relates to a material matter or not and the opinion is in conflict with many cases decided by this court, such as Marion v. Ins. Co., 35 Mo. 148; State ex rel. v. Farrington, 272 Mo. 162; Schuller v. Ins. Co., 62 Mo. 236. (2) Instruction 4 approved by the Court of Appeals, declares that any misrepresentation as to matters of opinion, such as the value of the property destroyed, made in the proofs of loss with intent to defraud, voids a fire insurance policy regardless of whether the misrepresentation was knowingly made or was the result of an honest opinion held by the plaintiff, and the opinion is in conflict with many cases decided by this court, such as Thomas v. Goodrum, 231 S.W. 577; McCow v. O'Malley, 298 Mo. 415; Anderson v. McPike, 86 Mo. 293; Roy Co. Bank v. Hutton, 224 Mo. 42. (3) Instruction 4, approved by the Court of Appeals, declares that any fraudulent misrepresentation as to the value of the property destroyed, made in the proofs of loss with intent to defraud, voids a fire insurance policy regardless of whether the misrepresentation relates to value in excess of the amount of insurance or not, and the opinion is in conflict with the principles so frequently announced by this court that fraud without damage or injury is not remedial. Marion v. Ins. Co., 35 Mo. 148; State ex rel. v. Farrington, 272 Mo. 162; Schuller v. Ins. Co., 62 Mo. 236. (4) Instruction 4, approved by the Court of Appeals, declares that any misrepresentation as to the value of the property destroyed, made in the proofs of loss with intent to defraud, voids a fire insurance policy notwithstanding there was no evidence of depreciation after the insurance was written, and our valued policy statute declares that the company shall not deny that the value of the property at the time of insuring was less than the insurance and authorizes the insured to claim and collect for the value insured, and the opinion is in conflict with cases decided by this court. Nally v. Home Ins. Co., 250 Mo. 452; Miller v. Ins. Co., 229 S.W. 264. (5) By said instruction the jury were instructed to find for defendant if they believed the plaintiff made a false statement about the number of horses he owned, or about their value, regardless of whether the defendant relied upon said statements and by such reliance was induced to write the policy, and the opinion is erroneous and in conflict with many cases decided by this court and referred to in the argument following. Wann v. Scullin, 210 Mo. 487, 234 Mo. 645. (6) Instruction 4 denies plaintiff a right to recover the $ 300 on vehicles and the $ 100 on feed, harnesses, etc., if he misrepresented the number or value of the horses, and the opinion of the court is erroneous in sustaining said instruction, because: (a) The insurance in this case is separately itemized and separately valued in the policy, the first item, $ 2,700, covering horses; the second item, aggregating $ 400, covering vehicles, feed, etc.; and the law is well settled that misrepresentation as to one separate and separable item does not affect the subject-matter of the second separate item, and the opinion is in conflict with cases cited in the argument following, and especially in conflict with Koontz v. Hannibal Ins. Co., 42 Mo. 126; Trabue v. Ins Co., 121 Mo. 75; State ex rel. v. Ellison, 266 Mo. 295. (7) The instruction authorizing the jury to find for defendant on its affirmative defense of arson allowed that defense if one of two theories was more probable than another and did not require that the jury find the defense to be established by the greater weight of the evidence, and is in conflict with Farmers Elevator Co. v. Hines, 243 S.W. 143; Missouri Egg Co. v. Ry. Co., 257 S.W. 481.

Leahy, Saunders & Walther for respondents.

(1) The Court of Appeals did not err in approving Instruction 4, paragraph 4 of which authorized a verdict for defendant if the jury "believe from the evidence that, after such fire, the plaintiff, with intent to defraud defendant, falsely and fraudulently, in his proofs of loss, misrepresented the value of the property destroyed." (a) Because the court's ruling does not conflict with the ruling of the Supreme Court. (b) Because the instruction, when read with defendant's Instructions 2 and 3, fairly presented the issues and required a finding by the jury of all the elements necessary under such a defense. Instructions must be read together and construed as a whole, and the giving of an incomplete instruction is not reversible error if its deficiencies are supplied by another. State ex rel. Dowell v. Allen, 250 S.W. 580; Hughes v. Railroad, 127 Mo. 452; Tawney v. United Rys., 262 Mo. 69; Cornovski v. Transit Co., 207 Mo. 263; State ex rel. Ambrose v. Trimble, 263 S.W. 840; State ex rel. Jenkins v. Trimble, 291 Mo. 234; McIntyre v. Railroad, 286 Mo. 234; State ex rel. North British Ins. Co. v. Cox, 307 Mo. 194. (2) Instruction 4 does not declare that any misrepresentation as to the value of the property destroyed, made in the proof of loss, will avoid the policy, regardless of whether the misrepresentation was knowingly made or the result of an honest difference of opinion, for the reason the instruction expressly requires the jury to find that the plaintiff, with intent to defraud defendant, falsely and fraudulently misrepresented the value of the property destroyed. Plaintiff's Instruction 3 and defendant's Instruction 3 tell the jury that false statements in the proof of loss will not avoid the policy unless knowingly and willfully made, etc. This instruction cures any defect, if any, in Instruction 4 on this point. Authorities supra. (3) Contentions not presented to or decided by the Court of Appeals cannot be made the basis of a ruling quashing its record on certiorari. State ex rel. St. Joseph v. Ellison, 223 S.W. 671; State ex rel. Quercus Lbr. Co. v. Robertson, 197 S.W. 79; State ex rel. Shaw Transfer Co. v. Trimble, 250 S.W. 384; State ex rel. U. Rys. Co. v. Allen, 240 S.W. 117. (4) The Valued Policy Statute, Sec. 6239, R. S. 1919, does not authorize the insured to claim and collect for the face of the policy. The only effect of said statute is to conclusively establish the value of the insured property at the date of the issuance of the policy, save in cases of fraud, and the burden of proving the value at the date of the fire is upon plaintiff, and in no event can a plaintiff recover more than the actual value of the insured property at the time of its destruction. It does not preclude the defense of fraud in the inducement of the contract, nor preclude a defense of false swearing in the proof of loss. Daggs v. Orient Ins. Co., 136 Mo. 382, affirmed 172 U.S. 557; State ex rel. North British Ins. Co. v. Cox, 307 Mo. 194. (5) The points raised by relator that this was a shifting policy which did not require assured to have all the property on hand at the time the policy was written, was not passed upon by the Court of Appeals. Hence, it is not a proper subject of inquiry here. Authorities under point 3, supra. (6) The point raised by relator that misrepresentations as to one item will not avoid the policy as to all, was not discussed in the opinion of the Court of Appeals. Points not decided by the Court of Appeals cannot be made the basis of a ruling quashing the record in certiorari. Cases cited under point 3, supra.

Higbee C. Railey, C., not sitting.

OPINION

HIGBEE

Certiorari to review the opinion of the St. Louis Court of Appeals in Burton v. Newark Fire Insurance Company, 263 S.W. 539, affirming the judgment of the circuit court for the defendant in an action upon a policy insuring horses, mules, vehicles, harness, etc., in a certain stable in the city of St. Louis, against loss by fire.

The opinion states that the answer admitted the issuance of the policy, payment of the premiums, and that the fire occurred as alleged, and denied all other allegations; averred that plaintiff falsely and fraudulently represented that he was the owner of the stock, and that he falsely and fraudulently represented the value thereof, and that he procured the stable to be burned, and falsely and fraudulently misrepresented the value of the property in his proof of loss. The reply admitted that the policy provided that if the insured concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning the insurance, or if the interest of the insured in the property be not truly stated therein, or in case of any fraud or false swearing by the insured touching any matter relating to the insurance or the subject thereof, whether before or after loss, the policy should be void, and denied all other allegations.

The opinion recites the evidence taken at the trial. Charles W. Moore testified for the defendant: "that he wrote insurance to the amount of $ 3,100 on the Burton property; that at the time, Burton told him he had about twenty-eight head of horses, and a quantity of feed and some wagons and harness. He said that Burton stated the aggregate value of the horses amounted to considerable more than the insurance that he wished to obtain. On cross-examination he stated that the policy provided that in the event of loss, no one animal was to be valued at more than $...