Schultz v. Merchants' Ins. Co. of St. Joseph

• Decision Date: 31 August 1874
• Citation: 57 Mo. 331
• Parties: CHRISTIAN SCHULTZ, Respondent, v. MERCHANTS' INSURANCE COMPANY OF ST. JOSEPH, MISSOURI, Appellant.
• Court: Missouri Supreme Court

57 Mo. 331

CHRISTIAN SCHULTZ, Respondent,

v.MERCHANTS' INSURANCE COMPANY OF ST. JOSEPH, MISSOURI, Appellant.

Supreme Court of Missouri.

August Term, 1874.

Appeal from Holt Circuit Court.

Parrish and Pike, for Appellant.

Zook, Van Buskirk and Heren, for Respondent.

NAPTON, Judge, delivered the opinion of the court.

This suit was instituted in Holt county Circuit Court, in 1872, on a policy of insurance against fire to the amount of $1,000, on a hotel building in the town of Craig, for twelve months, from 12th June, 1869, to June 10th, 1870. The policy was renewed for a year more, and on the 8th of July, another renewal was made till the 8th of July, 1872. On the 1st of April, 1872, the property was destroyed by fire. On the 5th of April, notice of the loss was given. On the 3rd of May, 1872, a particular account of loss was filed at the office in St. Joseph.

The answer to the petition denied notice of loss in time; insists that a notice four days after the loss was insufficient; and insists that the particular account furnished on 3rd of May, was defective; and that the magistrate's certificate was insufficient and procured on false representations; and that the said building was unoccupied for several weeks before the loss; that the plaintiff represented at the time of procuring the policy that the building was occupied by a good tenant; and that defendant was not notified of its being vacant.

But in addition thereto it was averred that plaintiff set fire to the building.

It is also charged that the value of the building was overstated; and that another insurance was effected for $1,000, whilst the building was really worth only $1,500, though represented to be worth $2,500.

There was a replication filed.

On the trial, a vast deal of evidence was given and is now preserved on the record, which shows that the main point tried by the jury was whether the plaintiff was the incendiary who fired the house. With this evidence we have no concern. It is not necessary to recite it, or make any comments on it. This point was fairly submitted to the jury as is agreed on both sides; and we have no power to interfere with their verdict. The bill of exceptions, occupying fifty pages of the record is filled with the testimony on this point, and on this point only.

The instructions of the court were:

1. “If the jury believe from the evidence that the hotel building of the plaintiff, was burned by fire on the night of April, 1st 1872, and that Kerr, the general agent of the defendant, was at Craig, (the town where the building was) the day after the burning, and knew of the same; and that the said agent made an affidavit charging said plaintiff with seting fire to said house; and that said plaintiff was, on the next day after the fire, arrested at his home, and before being at Craig, on the warrant issued on the affidavit of said agent; and that as soon after being released from said arrest as practicable under all the circumstances, and five days after, he caused a notice in writing to be served on an agent of defendant, notifying him of the loss by fire of said house; then notice was sufficient in law in point of time.”

2. “If the jury believe from the evidence that the plaintiff caused to be made out in writing, under his oath, an account of his loss in the burning of said hotel building, together with the certificate of one Hogue, a magistrate, living in Craig, being the nearest magistrate to said building; and that on the 3rd day of May, 1872, said notice of loss and said certificate of Hogue, were served upon said company or its agent, and, after the defendant had returned the first account and magistrate's certificate for irregularity; and that defendant returned the second account of loss and magistrate's certificate without any farther notice or objection to plaintiff; the same was sufficient in law, and so the jury will find; and especially, if you find the defendant refused to adjust the loss on other grounds than the sufficiency of such notice and statement, which may be determined from all the facts and circumstances.”

3. “If the jury believe that said hotel buiding was vacated at the end of the term for which the plaintiff had rented the same, with the impression that he had sold the same, or with a view to a sale of the same; and that said building was so vacant for three or four weeks before it was burned up, yet the plaintiff is entitled to recover, unless the jury further believe from the evidence and circumstances shown in the case, that the vacating of said house as aforesaid, increased the risk on same by fire, and that it was in the control of the plaintiff, with reasonable care to have kept it occupied.”

4. “Unless the jury believe from the evidence, that the plaintiff purposely set fire to the said hotel building, and thereby consumed the same, the jury on that issue will find for plaintiff.”

Two other instructions were given in regard to damages, and a third concerning the right of the jury to disregard the testimony of a witness when he swore falsely in a material matter. This last instruction was also asked by the defendant, and was given on both sides.

All the instructions asked by defendant were given, some of them with modifications to which objections are now made.

These instructions were:

1. “If the jury believe from the evidence that the plaintiff set fire to the building insured, etc., the jury will find for defendant.”

2. “As to whether plaintiff set fire to said house or not is a fact to be determined by the jury; but the existence of such fact need not be shown by positive evidence, but may be established by circumstances, and the jury in determining such fact, will take into consideration all the facts and circumstances connected with the case. And if the facts and circumstances in the case establish the fact to the reasonable satisfaction of the jury, by a preponderance of evidence, that said plaintiff did set fire to said...