Arel v. First National Fire Insurance Co.

• Decision Date: 22 December 1916
• Parties: N. A. AREL, Respondent, v. FIRST NATIONAL FIRE INSURANCE COMPANY, Appellant
• Court: Missouri Court of Appeals

190 S.W. 78

195 Mo.App. 165

N. A. AREL, Respondent, v. FIRST NATIONAL FIRE INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, Springfield

December 22, 1916

Appeal from Greene County Circuit Court, Division Number Two.--Hon Arch A. Johnson, Judge.

REMANDED (with directions).

Cause remanded.

John Schmook and Hogsett & Boyle for appellant.

Walker & Musgrave and G. G. Lydy for respondent.

FARRINGTON J. Robertson, P. J., and Sturgis, J., concur.

OPINION

FARRINGTON, J.

Respondent Arel brought suit to collect the amount of insurance named in a fire insurance policy issued by the defendant on the machinery and equipment of a steam laundry in Springfield. He did not own the building in which the laundry was operated. The policies taken out by him, one with the defendant, covered only the machinery and equipment used in the Laundry. the description of the property insured as set forth in the policy being as follows:

"$ 1,550 on laundry machinery, fixed and movable, and its spare parts, including boiler, engine, smokestack, wringers, drying room, ironing machines, starching machines, mangles, collar, cuff and other machines, washing machines, shafting, gearing, pulleys, hangers, steam and water pipes and the fittings and fixtures, tools of trade, tables, shelving, sewing machines, racks and supplies, office furniture and fixtures and supplies as are usually used in steam laundries; all while contained in the two-story brick and stone building and its additions adjoining and communicating, and situated at 213 South Market Street, Springfield, Missouri.

"$ 50. on soap, starch, paper, twine and other laundry supplies while contained in the above described building."

A number of defenses were set up in the answer, to-wit: That plaintiff caused the insured property to be set afire, fraud in the procurement of the policy; that plaintiff in the proof of loss made after the fire had intentionally, wilfully, falsely and fraudulently over-valued the goods and property lost and damaged by the fire and the extent of the loss by said fire; that his proof of loss contained representations as to articles which were lost or damaged by reason of the fire when in fact such articles so claimed by him as lost or damaged were not damaged at all by said fire and that the plaintiff knew when he made up his proof of loss that some of the articles which he claimed were totally destroyed and lost by the fire were in fact not damaged by reason of the fire in any particular.

The court admitted testimony in support of the defenses, much of which need not be detailed in disposing of the case under the view we take.

At the close of plaintiff's evidence in chief the trial court sustained a demurrer to the evidence and rendered a judgment in favor of the defendant so far as plaintiff Arel was concerned. The Drovers' Bank of Springfield was a party plaintiff below and the court rendered a judgment in its favor on account of an interest the bank had in the property insured by reason of a chattel mortgage, but the judgment as to the bank is not included in this appeal,

Plaintiff filed a motion for a new trial which the court sustained for the reason that the court concluded it had erred in sustaining the demurrer to plaintiff's evidence. It is from the order granting plaintiff a new trial that defendant has appealed to this court.

We are of the opinion that the plaintiff's documentary evidence supported by his own testimony defeats any recovery under this policy and we will refer to such of his evidence as is vital to the case.

As stated, the property insured was machinery and equipment of a laundry plant, plaintiff not owning the building in which it was operated. The clause in the policy covering the property covered it as laundry machinery, enumerating the various articles making up such a plant.

The following clause was in the policy:

"This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss." (We have italicized that portion relied on herein as a defense.)

The proof of loss sworn to by the plaintiff and filed with the insurance company contained the following statement with reference to the loss and the property damaged:

"The actual cash value of each specific subject thus situated and described by the aforesaid policy at the time of loss and the actual loss and damage by said fire to the same, as shown by annexed schedule, and for which claim is hereby made, was as follows: . . ."

Attached to this and made a part thereof the plaintiff furnished a list of the various articles owned by him and covered by the policy. Opposite each article he placed the value thereof. The first item appearing on this list is:

"One 40 H. P. boiler with injector and

appurtenances,

$ 750.00"

There was much testimony by the witnesses as to the extent of the loss and the value of the property. However, not one testified that there was any damage whatever to this boiler, for the reason that it was in a part of the building that was not reached by the fire. After the fire, straw and shavings were found on the floor around the boiler which had not been ignited. But the plaintiff after a long examination and cross-examination, when questioned by the trial judge, testified as follows:

"By the Court: Q. Mr. Arel, tell the court and the jury what effect the fire had on the boiler connected with your place of business. A. The cause of the fire directly wasn't very great on the boiler as far as the fire is concerned. That's what you want to know, isn't it? Q. what was it? What did it consist of, if anything? A. Well, I don't know whether you would allow me to state what I want but I have answered that as far as the fire is concerned it didn't damage the boiler anything to speak of but it was the fire put me out of business. Q. The boiler was as good after the fire as it was the day before? A. It was. I would say it was worth as much for running purpose, for running there, but I was out of business and couldn't run, so it was worthless to me on account of the fire. Q. And the loss to the boiler, the damage to the boiler was occasioned or you calculated that on the basis that your laundry couldn't be operated and it was worthless as a part and parcel of the laundry but was not directly injured by the fire itself? Do you claim it was injured by the water and smoke? A. I think not. Think I testified it wasn't. There was no fire in the boiler room. I think I testified to that. There was some straw in the boiler room yet. I think I testified to that. By Mr. Hogsett: Q. Mr. Arel, you knew the facts that you have just testified to here, at the time, the next day after the fire, didn't you? A. Yes, sir. Q. You learned ...