Bennett v. National Union Fire Ins. Co.

• Decision Date: 02 April 1935
• Citation: 80 S.W.2d 914,230 Mo.App. 939
• Parties: A. S. BENNETT, APPELLANT, v. NATIONAL UNION FIRE INSURANCE COMPANY, A CORPORATION, RESPONDENT
• Court: Missouri Court of Appeals

80 S.W.2d 914

230 Mo.App. 939

A. S. BENNETT, APPELLANT, v. NATIONAL UNION FIRE INSURANCE COMPANY, A CORPORATION, RESPONDENT

Court of Appeals of Missouri, St. Louis

April 2, 1935

Appeal from Circuit Court of the City of St. Louis.--Hon. James F Green, Judge.

REVERSED AND REMANDED.

Cullen Fauntleroy & Edwards for appellant.

(1) The giving of Instruction No. 4 is reversible error as submitting an issue not made by the pleadings or evidence, in that the terms of the policy do not require notice of theft to be given within forty-eight hours of the commencement of the use of the premises, and no such defense was pleaded. Murphy v. Great American Ins. Co., 268 S.W. 671; United Zinc Co. v. General Accident, etc., Co., 144 Mo.App 380, 128 S.W. 836; Schumacker v. Kansas City Breweries, 247 Mo. 141, 152 S.W. 13; Allen v. Mo. P Ry., 294 S.W. 80; Krelitz v. Calcaterra (Mo.), 33 S.W.2d 909; Spears v. Carter, 224 Mo.App. 726, 24 S.W.2d 717; Houchins v. Hobbs (Mo. App.), 34 S.W.2d 167; King v. Frederick (Mo. App.), 43 S.W.2d 843; Cummings v. Holly (Mo. App.), 60 S.W.2d 52; State ex rel. v. Ellison, 272 Mo. 571. (2) When the assured has shown the execution of the contract, also the loss, together with the amount thereof, the burden is on the insurer to prove that the loss is within the exceptions of the policy. Stephens v. Fire Association, 139 Mo.App. 369, 123 S.W. 63; Patten v. Springfield Fire & Marine Ins. Co. (Mo. App.), 11 S.W.2d 1101; Walton v. Phoenix Ins. Co., 162 Mo.App. 316, 141 S.W. 1138; Young v. Fidelity & Casualty, 215 S.W. 496; Smith v. Ohio Millers, etc., Ins. Co., 325 Mo. 51, 26 S.W.2d 962; Turner v. Benevolent Society, 28 S.W.2d 125; 8 Couch on Insurance, sec. 2217, pp. 7167-7168. (3) The giving of defendant's Instruction No. 5 was reversible error in that it placed on plaintiff the burden of disproving the affirmative defenses based on the exceptions of the policy. Avery v. Mechanics Insurance Co., 280 S.W. 726; Stephens v. Fire Assn. of Philadelphia, 123 S.W. 63; State ex rel. Stevens v. Arnold (Mo.), 30 S.W.2d 1015, l. c. 1018; Dawson v. Wombles, 123 Mo.App. 340, l. c. 345, 100 S.W. 547; White v. Lee (Mo. App.), 204 S.W. 936, l. c. 938. (4) Defendant's Instruction 5 is further erroneous in that it does not define "preponderance of evidence" and does not limit the jury to a consideration of the "credible" evidence. Head v. Lumber Co., 281 S.W. 441; Mackin v. Railroad Co., 45 Mo.App. l. c. 87; State v. Heinze, 45 Mo.App. l. c. 413; Thompson v. Business Men's Association, 231 S.W. 1049. (5) When an erroneous instruction is given and the trial results in favor of the party at whose instance the instruction is given, the presumption is that the error was prejudicial. Brown v. St. Louis, etc., Ry., 281 S.W. 452; Maloney v. Boatmen's Bank, 288 Mo. 435, 232 S.W. 133; Avery v. Mechanics Ins. Co., 280 S.W. 726.

John L. Harlan and Wilton D. Chapman for respondent.

(1) The burden of proof continues and abides with the plaintiff throughout the trial. McClosky v. Koplar, 329 Mo. 527, 46 S.W.2d 527. (2) The verdict was for the right party and should not be disturbed. Bartley v. St. Louis Railway Co., 148 Mo. l. c. 142; Ottomeyer v. Pritchett, 178 Mo. l. c. 165.

McCULLEN, J. Hostetter, P. J., and Becker, J., concur.

OPINION

McCULLEN, J.

This action was brought by appellant, plaintiff, to recover from respondent, defendant, $ 2000 alleged to be due plaintiff under the terms of a policy of automobile insurance issued by defendant. A trial before the court and a jury resulted in a verdict for defendant. Plaintiff's motion for a new trial was overruled by the court and he has appealed.

Plaintiff's petition alleged that defendant by its policy of insurance dated April 9, 1928, insured plaintiff for the term of one year from that date against direct loss by theft, robbery or pilferage of automobiles from premises at 100-104 West Lockwood Avenue, Webster Groves, Missouri, to the extent of $ 10,000 and to the extent of $ 2000 for a period of forty-eight hours at any other location owned, rented, or controlled, wholly or in part, by plaintiff, such period to begin with the commencement of the use of such location by plaintiff.

Plaintiff alleged that on January 5, 1929, he removed a number of automobiles, described in the petition, from 100-104 West Lockwood Avenue, Webster Groves, Missouri, and stored them at 7195 Manchester Avenue, Maplewood, Missouri, and that within forty-eight hours thereafter, they were taken therefrom by theft, robbery or pilferage by persons to plaintiff unknown, without plaintiff's knowledge and consent, and were converted by said persons to their own use so that they were wholly lost to plaintiff; that said automobiles at that time were of the reasonable value of $ 4,577.32, and that plaintiff was the sole owner thereof.

The petition alleged that plaintiff gave defendant immediate notice of said loss; that he duly performed all the terms and conditions of the policy which he was obligated to perform, and demanded payment but that defendant refused payments. Plaintiff prayed judgment against defendant for $ 2000 on the policy, with six per cent interest per annum from the date of demand. He also prayed for ten per cent damages and a reasonable attorney's fee because of defendant's vexatious refusal to pay the claim.

Defendant's amended answer contained a general denial, and for further answer pleaded the following provision of the policy:

"3. Exclusions. This policy does not cover: (c) Loss suffered by the assured in case he voluntarily parts with title to or possession of any property at risk hereunder, whether or not induced so to do by any fraudulent scheme, trick, device or false pretense or otherwise."

Defendant alleged that prior to the date of loss, plaintiff had voluntarily parted with the title to and possession of the property referred to in plaintiff's petition, and that at the time of said loss plaintiff was without title to or possession of said property.

The amended answer pleaded that the policy contained the following provision:

"5. Named Locations. All locations, owned, rented or controlled, wholly or in part by the assured, and used by him as places of storage of automobiles at the date of inception of this policy shall be specified herein, and all other such locations so used by the assured during the currency of this policy shall be reported to this company within forty-eight hours after the commencement of such use. No liability shall attach hereunder at any such location not specified herein, or reported to this company, except for the period of forty-eight hours as referred to herein. The assured shall promptly notify this company of the discontinuance of the use of any locations that have been reported to this company."

In connection with the foregoing policy provision, the amended answer alleged that the only location of assured specified in the policy was 100-104 West Lockwood Avenue, Webster Groves, Missouri, and that plaintiff's loss, if any, was from premises at 7195 Manchester Avenue, Maplewood, Missouri. Defendant specifically denied that any of the automobiles were taken by theft, robbery or pilferage within forty-eight hours after the commencement by plaintiff of the use of the premises at 7195 Manchester Avenue, and averred that all or some of said automobiles were stored by plaintiff at said address more than forty-eight hours prior to the loss thereof and more than forty-eight hours after the commencement of the use by plaintiff of said premises, and that plaintiff failed to notify defendant of his change of location or of his use of the last-named premises within forty-eight hours after the commencement of the use thereof.

The amended answer further averred that prior to plaintiff's alleged loss, plaintiff entered into an agreement with one F. A. Reed, doing business as F. A. Reed Sales Company, to further the sale through said Reed of automobiles owned by plaintiff, and that pursuant to said agreement and in December, 1928, and more than forty-eight hours prior to the loss, plaintiff transferred the automobiles, mentioned in his petition, from 100-104 West Lockwood Avenue, Webster Groves, Missouri, to said Reed's premises at said Manchester Avenue address.

Plaintiff's reply was a general denial.

The policy of insurance was introduced in evidence by plaintiff. It covered the period of time alleged in plaintiff's petition and insured plaintiff against loss or damage not to exceed the sum of $ 10,000 at 100-104 West Lockwood Avenue, Webster Groves, Missouri, and not to exceed the sum of $ 2000 "for a period of forty-eight hours at any other location owned, rented, or controlled, wholly or in part, by the assured as a place of storage, such period to begin with the commencement of the use of such location by the assured."

The policy contained the following provision concerning notice of loss: "In the event of loss or damage, the assured shall give forthwith notice thereof in writing to this company. . . ."

Plaintiff testified that he had been in the automobile business, dealing in new and used cars, for about ten months at 100-104 West Lockwood Avenue, Webster Groves, Missouri, where he dealt in Pontiac and Oakland cars which he got from the Mississippi Valley Motor Company; that on January 5, 1929, he moved from the Webster Groves address to premises occupied by F. A. Reed at 7195 Manchester Avenue, Maplewood, Missouri, where Reed was operating as F. A. Reed Sales Company; that he, plaintiff, had an arrangement whereby he was to have possession of the building at the Manchester Avenue address for display purposes, and was to split expenses for rent, lights and 'phone; that he did not have any arrangement where Reed was to sell automobiles for him.

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