City of De Soto v. American Guaranty Fund Mutual Fire Insurance Company

• Decision Date: 28 April 1903
• Citation: 74 S.W. 1,102 Mo.App. 1
• Parties: CITY OF DE SOTO, Respondent, v. AMERICAN GUARANTY FUND MUTUAL FIRE INSURANCE COMPANY, Appellant
• Court: Missouri Court of Appeals

74 S.W. 1

102 Mo.App. 1

CITY OF DE SOTO, Respondent, v. AMERICAN GUARANTY FUND MUTUAL FIRE INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 28, 1903

Appeal from Jefferson Circuit Court.--Hon. Frank R. Dearing, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

Waddill & Hereford for appellant.

(1) It is well-settled law that if the finding of facts is clearly against the evidence, or that there is no evidence to support the finding, the appellate court will reverse that finding. The valued-policy law applies only to real estate. R. S 1899, sec. 7970. (2) An inspection of the record will show that there was not a scintilla of evidence that the personal property was worth $ 200 or any other amount. Witness Ballard, plaintiff's only witness, stated that the property originally cost between $ 200 and $ 300, that it had been used for smallpox patients, and that he did not know its value. We submit that it had no value. On this evidence, and this evidence alone, the court found that the property was worth $ 200 and proceeded to give judgment against defendant for that amount.

Jas. G Berkeley, H. B. Irwin, Dinning & Hamel and Sam'l A. Reppy for respondent.

In every country, where the common law is the basis of jurisprudence, a judgment rendered by a court of general common-law jurisdiction over a subject within its jurisdiction, the law presumes the correctness of said judgment, and he who seeks to invalidate it must furnish the reasons therefor. Hoffman v. Malloy, 91 Mo.App. 369.

REYBURN J. Bland, P. J., and Goode, J., concur.

OPINION

REYBURN, J.

--Respondent, a city of the third class, brought this action against defendant, a corporation organized under the fire insurance laws of the State of Missouri, on a policy issued by it insuring two frame dwellings in the sum of $ 500 each, and $ 100 upon the contents of each of such buildings.

The defenses interposed by defendant's answer and relied on to defeat plaintiff's claim were, that the buildings insured had become, were and remained vacant and unoccupied at the time of the fire and for ten days prior thereto, and thereby under the express terms of the contract of insurance the policy became void; that the application for insurance filed with defendant, which was made part of the policy and a warranty of the insured, stated that the two dwellings insured were occupied as a dwelling by one Maloy as sexton, and that such warranty was false and untrue, and that such buildings were not occupied by Maloy or anyone else as a residence, but when occupied at all were used as pesthouses, and finally that it was agreed under the policy that if the hazard should be increased by any means within control or knowledge of the insured, the policy should be null and void, and that the hazard was so increased by the change of occupancy from dwellings as represented in the policy and application to pesthouses.

The reply contained averments charging and constituting a waiver of the provisions of the policy invoked by defendant's answer.

The local representative of defendant, a resident of De Soto, had sold the property to plaintiff, wrote the application for issued and countersigned the policy. He acknowledged that at the time he prepared the application and inserted therein statements to the effect that the property was occupied by the city sexton, and used as a cemetery by the city, and incorporated therein that if permitted to write the risk he would secure the insurance of all the other property of plaintiff, and added a recommendation therein to defendant not to decline...