Baker & Lasley v. Phœnix Ins. Co.
| Decision Date | 02 May 1921 |
| Docket Number | No. 13971.,13971. |
| Citation | 230 S.W. 336 |
| Court | Missouri Court of Appeals |
| Parties | BAKER & LASLEY v. PHŒNIX INS. CO. |
Appeal from Circuit Court, Saline County; Samuel Davis, Judge.
"Not to be officially published."
Suit by Baker & Lesley against the Phœnix Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed as modified.
See, also, 221 S. W. 761.
Fyke, Snider & Hume, of Kansas City, for appellant.
Robert M. Reynolds and Albert R. James, both of Marshall, for respondent.
This is a suit on a fire insurance policy, insuring plaintiffs' stock of merit chandise in the sum of $1,325. There was a total loss by fire of the property insured, but defendant refused to pay the policy, resulting in this suit. There was a verdict and judgment in favor of plaintiffs in the sum of $1,497.25, which was made up by the amount of the policy, with interest thereon in the sum of $172.25. Defendant has appealed.
The answer pleads the following provision of the policy:
"It is a part of the consideration of this policy and the basis upon which the rate of premium is fixed, in the event of loss, this company shall not be liable for an amount greater than three-fourths of the actual cash value of the property covered by this policy at the time of such loss, and in case of other insurance whether policies are concurrent or not, then for only its pro rata proportion of such three-fourths value"
— and further pleads that:
If plaintiffs were entitled to recover, recovery should be "* * * an amount equal to the proportion of the insurance thereon, by the policy in suit, bears to three-fourths of the value of said stock of merchandise, considering all insurance thereon, and defendant alleges there was $1,325 other insurance thereon in the Concordia Town Mutual Insurance Company."
The evidence shows that the stock of goods at the time of the fire was worth from $6,000 to $6,500. It was shown at the trial that after the fire plaintiffs made a written sworn statement to defendant's adjuster, and that in answer to a question propounded by the adjuster as to the amount of insurance carried upon the stock plaintiffs answered, "Total insurance, $3,500, in two companies named herein." Plaintiffs' given instruction tells the jury that if the value of the merchandise at the time of the fire was $3,500, etc., their verdict should be returned for plaintiffs for the face value of the policy, or $1,325, with interest thereon from August 1, 1918, at the rate of 6 per cent per annum.
Defendant insists that there is no evidence in the record that plaintiffs owned the stock of merchandise when it was destroyed, and for this reason defendant's demurrer to the evidence should have been sustained. We think this point is not well taken. The petition alleges that defendant made the policy sued on in which it insured the merchandise belonging to plaintiffs, and in its answer defendant admits that it issued the policy described in the petition. The facts admitted in the pleadings create an inference that the ownership was in plaintiffs at the time of the fire. Zackwik v. Hanover Fire Ins. Co., 225 S. W. 135; Rodgers v. Fire Ins. Co., 186 Mo. 248, 85 S. W. 369; Cox v. Amer. Fire Ins. Co., 137 Mo. App. 40, 119 S. W. 476; Thomasson v. Mere. Town Mutual Fire Ins. Co., 114 Mo. App. 109, 89 S. W. 564, 1135. In addition to this plaintiff Baker testified that he and plaintiff Lasley were partners at the time of the issuance of the policy and at the time of the fire, and were engaged in the general merchandizing business at Norton, Mo., where the insured goods were located; that he was in charge of the store which contained "our" books of account and inventory. His testimony shows that he was fully acquainted with the business. He testified:
"I had more goods in the store the date of the fire than I did at the time of the inventory."
Defendant introduced no...
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...they complied with the law of Kansas as to the purchase of the automobile, that is, received a bill of sale. It was held in Baker & Lasley v. Ins. Co., 230 S.W. 336, that admitted facts, such as appear in the record in case, create an inference that the ownership was in the respondents at t......
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