City of De Soto v. American Guaranty Fund Mut. Fire Ins. Co.

• Decision Date: 28 April 1903
• Citation: 74 S.W. 1
• Parties: CITY OF DE SOTO v. AMERICAN GUARANTY FUND MUT. FIRE INS. CO.
• Court: Missouri Court of Appeals

74 S.W. 1

CITY OF DE SOTO v. AMERICAN GUARANTY FUND MUT. FIRE INS. CO.

Court of Appeals at St. Louis, Missouri.

April 28, 1903.

FIRE INSURANCE—KNOWLEDGE OF AGENT— EFFECT—PROOF—VALUE OF PROPERTY DESTROYED.

1. The special findings made by the trial court pursuant to the statutory provisions are conclusive on issues of fact in actions at law, if the record contains evidence sufficient to support such findings, and they will not be disturbed on appeal if the conclusions of law are correct.

2. Knowledge of the agent of a fire insurance company at the time he wrote the application that the buildings named, which were owned by plaintiff city, were not occupied by the city sexton, as he stated therein, but were intended for smallpox patients, and were called pesthouses, was binding on the company, and it could not set up that the policy was avoided by reason of the misstatement in the application.

3. Under the direct provisions of Rev. St. 1899, §§ 7969, 7970, the amount of insurance on buildings is conclusive as to their value at the time the insurance was effected, but the sections only apply to real property, and proof of the value of personalty destroyed is essential to support a recovery.

4. In an action on a fire policy covering personalty owned by a city, testimony of the latter's mayor, without specifying or detailing the nature of the property, that it had cost between two or three hundred dollars when new, that it had been in the buildings destroyed about six months, in use by smallpox patients, and that he did not know what it was worth at the time it was consumed, was insufficient to show the value of the property at the time of its destruction, or to authorize recovery therefor.

Appeal from Circuit Court, Jefferson County; Frank R. Dearing, Judge.

Action by the city of De Soto against the American Guaranty Fund Mutual Fire Insurance Company. Judgment for plaintiff. Defendant appeals. Reversed.

Waddill & Hereford, for appellant. Dinning, Berkley & Irwin, for respondent.

REYBURN, J.

Respondent, a city of the third class, brought this action against defendant, a corporation organized under the fire insurance laws of the state of Missouri, on a policy issued by it insuring two frame dwellings in the sum of $500 each, and $100 upon the contents of each of such buildings. The defenses interposed by defendant's answer and relied on to defeat plaintiff's claim were that the buildings insured had become, were, and remained vacant and unoccupied at the time of the fire, and for 10 days prior thereto, and thereby, under the express terms of the contract of insurance, the policy became void; that the application for insurance filed with defendant, which was made part of the policy, and a warranty of the insured, stated that the two dwellings insured were occupied as a dwelling by one Maloy as sexton, and that such warranty was false and untrue, and that such buildings were not occupied by Maloy, or any one else, as a residence, but, when occupied at all, were used as pesthouses; and finally, that it was agreed under the policy that, if the hazard should be...