Berthold v. Clay Fire & Marine Ins. Co.

• Decision Date: 06 June 1876
• Citation: 2 Mo.App. 311
• Parties: SARPY BERTHOLD et al., Respondents, v. THE CLAY FIRE AND MARINE INSURANCE COMPANY, of Newport, Kentucky, Appellant.
• Court: Missouri Court of Appeals

2 Mo.App. 311

SARPY BERTHOLD et al., Respondents,

v.THE CLAY FIRE AND MARINE INSURANCE COMPANY, of Newport, Kentucky, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 6, 1876.

1. Where a cause of action is imperfectly stated in the petition, it will be presumed, after verdict, that all essential facts were proved.

2. If one having an interest in mortgaged property procure insurance in his own name, loss, if any, payable to the mortgagee, a suit may be maintained in the name of the mortgagee. Bringing the action is a ratification of the contract, and the mortgagee is entitled to recover the full amount of insurance, not to exceed the amount secured by the mortgage.

APPEAL from St. Louis Circuit Court.

Affirmed.

Melville Smith, for appellant.

E. P. Johnson, for respondents, cited: Webb et al. v. Morgan et al., 14 Mo. 428; Harvey v. Dutcher, 15 Mo. 89; Miles v. Taylor, 19 Mo. 468; Meier v. Leiter, 21 Mo. 112; Dillon v. Bates, 39 Mo. 292; Nicholas v. Fritschle, 40 Mo. 67; Wag. Stat. 1000, sec. 3, 1068, sec. 35.

BAKEWELL, J., delivered the opinion of the court.

This was an action upon a policy of insurance for the sum of $2,400, and issued by defendant upon the property of one D. C. James, consisting of a portable saw-mill. The insurance is against loss by fire, for six months from January 25, 1874; loss, if any, payable to plaintiffs. The policy provides that the defendant should make good to the assured all such loss not exceeding the sum insured nor the interest of the assured in the property at the time of the loss; the amount of damage to be estimated at the actual cash value of the property at the time of the loss.

The petition set forth the copartnership of the plaintiffs, and that defendant, by the policy recited, did, in consideration of $180 paid by D. C. James, insure said James against loss or damage by fire, to the amount of $2,400, on the saw-mill described--loss, if any, payable to Berthold & Jennings, plaintiffs herein--by which defendant agreed to make good to said assured the interest of assured in the property; that the interest of said James exceeded $2,400; the proper proofs of loss were made; that the said sum had been demanded and refused, and was due, and prayed for judgment.

The answer denied all the allegations of the petition, and set up new matter of defense, which was totally abandoned on the trial.

Plaintiffs offered evidence tending to prove all the material allegations of the petition.

There was a verdict and judgment for plaintiffs for the sum of $2,145.54, and defendant, having filed a motion for a new trial, and a motion in arrest, which were overruled, brings the case here by appeal.

On the trial, DeWitt C. James having testified that he owned the property insured, defendant, on cross-examination, asked him what interest plaintiffs had in the property; to which he answered that they had loaned him money, and had taken a deed of trust on the property for about $3,000; that he had repaid them some of the debt; had a running account with them, and shipped them lumber; could not tell when he paid them the first payment. Defendant's counsel then asked: “How much did you pay them at the first payment?” and was answered: “I don't know how much.” Defendant's counsel then asked: “About how much?” Plaintiffs' counsel objected, and the court sustained the objection. Defendant's counsel then offered to show the interest of plaintiffs in the property in question. The evidence was excluded by the court. To these rulings defendant's counsel excepted, and assigns them here for error. We see no error in the ruling; nor is any suggestion made that this action was erroneous in any other respect than this, that defendant, it is said, was thereby prevented from showing a material fact, to wit, the interest of the assured in the property. But, as the interest of the assured in the property was abundantly shown by testimony introduced by plaintiffs, and as defendant could not be benefited in any way by showing that plaintiffs had an insurable interest, we cannot see that defendant was prejudiced by the exclusion of this evidence.

Counsel for defendant asserts in his brief that he further “offered to show the interest of plaintiffs in the property, in order to show that it was in them, and not in the assured, which the court refused to permit.” We are not referred to the page of the record containing any such offer, and have looked over the mass of matter contained in this carelessly written and almost illegible transcript to find the precise nature of this alleged offer, without success. It may have been omitted by the negligence of the copyist; for the clerical blunders in this transcript are such as to make sheer nonsense of a great part of it. It is, however, to be presumed that the interest of plaintiffs in this property was in them, and not in any one else; otherwise, it could hardly be called their interest. But counsel cannot expect the court to scrutinize a voluminous record for possible errors which they will not take the pains to indicate with some attempt at precision. It is no part of our duty to attempt to guess at the meaning which counsel may have intended to commit to paper whilst scrawling something which, by courtesy, is called a brief, but which counsel has not thought it worth his while to put into any coherent shape, or to have written out in a fairly legible hand.

The following instruction was given by ...