Barton v. Home Ins. Co. of New York

Decision Date31 January 1868
Citation42 Mo. 156
PartiesELIAS R. BARTON et al., Appellants, v. THE HOME INSURANCE COMPANY OF NEW YORK, Respondent.
CourtMissouri Supreme Court

Appeal from Howard Circuit Court.

Adams & Shackelford, and R. F. Wingate, for appellants.

I. The plaintiffs' hemp was stored in a warehouse in Glasgow, within the military lines of an army then in absolute possession of the place, under regular officers and leaders, constituting a part of the armies of the late rebellion. This army was a “usurped power,” within the meaning of the policy. To shield itself under the defense that the plaintiffs' hemp was burned by means of this usurped power, it was incumbent on the defendant to prove that the usurped power was the proximate cause of the loss; and to do this it was necessary to show that the hemp was set on fire by the authority of that usurped power. (Ellis on Life & Fire Ins., Shaw's ed., 103-109; Drinkwater v. The Corporation of the London Assurance, 2 Wil. 363; Langdale v. Mason, 2 Park. 657, 7th ed.; 2 Marsh. on Ins. 793.)

Draffin, Hutchison & Muir, for respondent.

NAGNER, Judge, delivered the opinion of the court.

This was an action upon a policy of insurance for $10,000, issued by defendant to plaintiffs, on a lot of hemp stored in a warehouse belonging to B. W. Lewis, in the city of Glasgow, in Howard county, in this State. The hemp was destroyed on the 17th day of October, 1864, by fire, while an armed and organized force of the rebel army held military possession and control of the place. The evidence shows most clearly that when, on the 15th day of October, the national soldiers were overpowered and compelled to surrender to the rebels, the latte force held absolute and exclusive possession of the place till the evening of the 17th day of the month, and that their forces had not evacuated the town till after the fire had consumed the hemp. As to the origin of the fire, whether it occurred by the act of the rebel soldiers or was communicated by their camp - fires, there is some doubt, and we do not propose to discuss it, as it properly belongs to the province of a jury. It is certain, however, that there is no evidence that the burning was authorized by an order from the commander of the forces. It appears from the record that the citizens were badly frightened, and that the rebel guard, stationed near the warehouse, would not permit them to go near it. The policy of insurance contains this clause: “Provided, always, and it is hereby declared, that this corporation shall not be liable to make good any loss or damage by fire which may happen by means of any invasion, insurrection, riot, or civil commotion, or of any military or usurped power, or of any loss by theft at or after the fire.” The defendant contends that it is exempted from the payment of the loss by reason of the above-recited proviso; but it is argued by the plaintiffs that, to constitute an exemption in consequence of usurped power, it must be shown that the property was...

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14 cases
  • Pan Am. World Airways, Inc. v. Aetna Cas. & Sur. Co.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 15 Octubre 1974
    ...only scant judicial attention, presumably because the events necessary to bring them into play are extraordinary. See Barton v. Home Insurance Co., 42 Mo. 156, 158 (1868). They have been considered in the context of the Irish rebellion, the American Civil War, and, hypothetically, in the co......
  • Avery v. American Auto. Ins. Co.
    • United States
    • Missouri Supreme Court
    • 10 Noviembre 1942
    ... ... Co. of N. Y., 100 S.W.2d 23, rehearing ... denied Jan. 22, 1937; Delamatter v. Home Ins. Co., ... 233 Mo.App. 645, 126 S.W.2d 262; Barton v. Home Ins. Co ... of New York, 42 Mo ... ...
  • First National Bank of Nome v. German American Insurance Company
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    ... ... civil authority. Lycoming F. Ins. Co. v. Schwenck, ... 95 Pa. 89, 40 Am. Rep. 629; Barton v. Home Ins ... S.W. 234; see also note to 20 L.R.A.(N.S.) 277; New York ... v. Lord, 17 Wend. 258; Taylor v. Plymouth, 8 ... Met. 462; ... ...
  • Continental Insurance Company of New York City v. Kyle
    • United States
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    ... ... 134] of the parties, to be ascertained ... from the terms and conditions placed therein. Barton ... v. Home Ins. Co., 42 Mo. 156 (97 Am. Dec. 329); ... Straus v. Imperial Fire Ins. Co., ... ...
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