Burton v. Newark Fire Ins. Co.

• Decision Date: 05 February 1924
• Docket Number: No. 17129.,17129.
• Citation: 263 S.W. 539
• Parties: BURTON v. NEWARK FIRE INS. CO.
• Court: Missouri Court of Appeals

263 S.W. 539

BURTON v. NEWARK FIRE INS. CO.

No. 17129.

St. Louis Court of Appeals. Missouri.

February 5, 1924.

Rehearing Denied May 29, 1924.

Insurance 669(6).—instruction requiring finding that insured misrepresented ownership and value with intent to defraud held proper.

In action on a fire policy, providing that Insured's concealment or misrepresentation of material fact should render it void, insurer's instruction requiring finding that plaintiff falsely and fraudulently made representations as to ownership and value "with intent to defraud" held properly given as necessarily requiring "intent to deceive" insurer.

2. Insurance 281 Insured procuring fire policy by fraudulent representations as to property value not permitted to recover on it, notwithstandinp, statute.

Insured, procuring a fire policy by false and fraudulent representations as to value of the property, unknown to insurer, who had no opportunity to know the truth or falsity thereof, could not recover on it, notwithstanding a valued policy statute fixing value of property when insured, since the statute applies only to honest dealing.

3. Appeal and error 882(14)—Party cannot complain of invited error.

Plaintiff, having requested submission to jury of certain issues, could not complain, on appeal, that there was no substantial evidence upon which to submit them.

4. insurance 0669(6)—instructions for defendant held proper.

In action on a fire policy, instructions requiring, as prerequisite to verdict for defendant, findings that actual loss and damage occasioned by insured was materially less than appeared in his statement, that insured's misrepresentations as to value and number of insured horses was knowingly and willfully made with fraudulent design, and defendant would not have issued the policy if actual facts had been known, held proper.

Allen, P. J., dissenting.

Appeal from Circuit Court, St. Charles County; B. B. Woolfolk, Judge.

"Not to be officially published."

Action by Charles R. Burton against the Newark Fire Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for appellant.

Leahy, Saunders & Walther, of St. Louis, for respondent.

NIPPER, C.

This is an action on a fire insurance policy of $1,000. Plaintiff in his petition alleges that he was the sole and unconditional owner of a certain lot of horses, mules, vehicles, harness, and stable equipment, to wit, 28 head of horses and mules, 6 vehicles, 2 sets of single harness, 1 set of double harness, 1 set of racing harness, 5 horse blankets, 1 lot of boots, 30 halters, 6 bales of hay, etc. The policy was issued by the defendant covering its proportion of an alleged amount of $3,100. The property in question was located in a frame stable building at 207 N. Beaumont street, in the city of St. Louis. It is alleged that, while the above-mentioned property was located at the place above described, a fire occurred on the 4th day of June, 1915, which destroyed the said property to the extent and to the amount of $3,946.35.

The answer admits the issuance of the policy, and the payment of the premium, and admits that the fire occurred at the time and place alleged in the petition, and denies all other allegations. Further answering, defendant alleges that plaintiff falsely and fraudulently represented that he was the owner of the stock, and that he falsely and fraudulently represented the value thereof, and that he procured the building described in the petition to be burned, and falsely and fraudulently misrepresented the value of the property described in his proof of loss..

Plaintiff's reply admitted that the policy provided that, if the insured concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning the insurance, or if the interest of the insured in the property be not truly stated therein, or in case of any fraud or false swearing by the insured touching any matter relating to the insurance or the subject thereof, whether before or after loss, the policy should be void; and for a further reply denied defendant's answer.

Upon a trial before the court and jury, there was a verdict for defendant, and plaintiff appeals.

Plaintiff was a horse dealer, and also said he was a detective. About the 1st of May, 1915, he rented the stable in question, and, after using it for about one month, it burned down. The schedule in the proof of loss introduced in evidence showed the 28 horses, as well as the other articles, together with their cost and stated value. Plaintiff testified that he bought the horses through different persons-8 head of horses from one Hoefner, and some from Herbert Meyer, Otto Meyer, Joseph Kamer, Holland, Nugents & Maxwell, and a Mr. Rice. The total cost of the horses, as shown by the schedule in the proof of loss was $2,762.50, the cost of the vehicles was placed at $452.50, and the cost of the harness, etc., was placed at $143.85. These, it was stated, were in the barn at the time of the fire. He further testified that the fire did not originate by any act, design, or procurement on his part; that he last saw the horses the evening of the fire, about 8:15 or 8:30. The fire occurred about 11 o'clock p. m. He did not know of the fire until the" next morning about 7:30; that when he took possession of the stable it had been used as a garage or paint shop, and that there were a lot of paint cans and an old anvil block in there; that the dirt on the floor was greasy. There was a plank platform which had been used to tear down machines. These planks were soaked with grease and oil of different kinds. Some of the cans had paint in them, some had oil, some had gasoline, and some turpentine. He left the barn about 8 o'clock, drove down town to Seventh or Eighth on Pine street, and met his partner in the detective business, K. E. Mudge; drove from there to the St. James Hotel, then to the Wellington Hotel, and from there to his home on Russell avenue, arriving at home at about 10:20, in company with Mudge. He retired about 11:15, and stayed the rest of the night in his home.

On cross-examination, plaintiff stated that he had sold some horses in St. Louis County for a man, and told the man he was robbed of the money, but afterwards paid it. He also said that he had run a hotel in Cuba, Mo., for two or three months, but got into some trouble down there; that he, Otto Meyer, and Hoefner were interested in a carload of horses; that he had rented a small barn in 1912 and 1913, and one in 1011 or 1012, but had never had another barn in St. Louis. He stated that he rented the property about the 10th of April preceding the tire; that he kept an account at the America_ Trust Company, but paid cash for most of these horses; that he did not remember where he got the money to pay Hoefner. The money he paid Herbert Meyer he said he probably got in Arkansas; the other moneys he carried in his pocket. He stated that his mother-in-law had given him $850, and that some months before that she had given him $450; that his mother-in-law lived at Miller's Falls, Mass. Near and adjoining this frame stable there was a brick stable. There were none of the vehicles in the brick stable at the time of the fire. Plaintiff was preparing to ship the horses the next week. A colored man named Jarrett rented the back of the lot from him, and plaintiff employed a man named Beasley from time to time.

From the testimony of other witnesses, it appears that for four or five years previous to the date of the fire this place was used as a secondhand vehicle shop, where they buy, sell, and paint old rigs. The brick building was used as a garage where automobiles were repaired. In tearing up and handling the automobiles, different kinds of oil and gasoline were used.

One witness, Myron Green, testified that he saw the barn shortly before the fire, and that the value of the horses was substantially the value placed upon them by plaintiff.

Paul S. Banta, a motorman for the United Railways Company, stated that he knew the plaintiff, and that he saw him on Russell avenue, going west, about 10:18 the night of the fire.

The following witnesses testified on behalf of defendant:

Charles W. Moore, by a deposition, testified that he was in the real estate and insurance business, with offices in the Wainwright building; that he wrote insurance to the amount of $3,100 on the Burton property; that at the time Burton told him he had about 28 head of horses, and a quantity of feed and some wagons and harness. Ile said that Burton stated the aggregate value of the horses amounted to considerable more than the insurance that he wished to obtain. On cross-examination, he stated that the policy provided that, in the event of loss, no one animal was to be valued at more than $100; that the policy covered a period of one year, and was to cover whatever horses he may have had during that time, at a value of $100 a piece; that he did not know anything about a clause in the policy limiting the value of each horse to $100.

Antoine J. Werner, a detective sergeant of the St. Louis police department, testified that he made an investigation with reference to the origin and cause of the fire, and talked with Rice and Hoefner; that he found a rubber-tired runabout three or four days after the fire at Mr. Hoefner's barn; that he examined Mr. Hoefner's book, which showed the entry of $852.60, relating to the horses sold to plaintiff. Some entries bore later dates than the entry with reference to the horses, and they appeared on the page before the entry in the book relating to these horses; that he did not remember what dates appeared in the book prior to the 20th. The runabout Hoefner said he had gotten out of the barn and was at Hoefner's. He stated they had ascertained from Holland and Maxwell that they had never sold horses to Burton. On the 9th of June, he arrested Burton.

Henry Beasley, colored,...