Connecticut Fire Insurance Co. v. Chester, Perryville & Ste. Genevieve Railroad Co.
| Decision Date | 04 February 1913 |
| Citation | 153 S.W. 544,171 Mo.App. 70 |
| Parties | CONNECTICUT FIRE INSURANCE COMPANY, Respondent, v. CHESTER, PERRYVILLE & STE. GENEVIEVE RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
January 6, 1913, Argued and Submitted
Appeal from Ste. Genevieve Circuit Court.--Hon. Peter H. Huck Judge.
AFFIRMED.
Judgment affirmed.
Giboney Houck and Davis & Hardesty for appellant.
(1) The demurrers to the evidence should have been sustained. (a) Defendant's evidence tending to show the true source of the fire to be other than an engine requires that plaintiff's circumstantial evidence be of the strongest character. Brooks v. Railroad, 98 Mo. 106; Torpey v. Railroad, 64 Mo. 382; Peck v Railroad, 31 Mo.App. 123; Peffer v. Railroad, 98 Mo.App. 292; Gibbs v. Railroad, 104 Mo.App. 276; Bank v. Railroad, 98 Mo.App. 336; Hallon v. Fuel and Light Co., 105 S.W. 428; Wright v Railroad, 107 Mo.App. 212; Big. Riv. Ld. Co. v. Railroad, 101 S.W. 638; 123 Mo.App. 394; Manning v. Railroad, 137 Mo.App. 631. (b) But from plaintiff's circumstantial evidence there can be deduced no rational inference that an engine caused the fire. Torpey v. Railroad, 64 Mo.App. 387; Morrow v. Pullman Co., 98 Mo.App. 357; Callehan v. Warner, 40 Mo. 132; Gibbs v. Railroad, 104 Mo.App. 276; Manning v. Railroad, 137 Mo.App. 631; Mockowik v. Railroad, 196 Mo. 571; Bank v. Railroad, 98 Mo.App. 335. (c) The remoteness of time when an engine passed is, alone, sufficient to preclude recovery. Foster v. Railroad, 143 Mo.App. 547; Gibbs v. Railroad, 104 Mo.App. 283; Bank v. Railroad, 98 Mo.App. 335; Manning v. Railroad, 137 Mo.App. 631; Schaub v. Railroad, 133 Mo.App. 444; Linkauf v. Lombard, 137 N.Y. 417; Hemmens v. Nelson, 20 L. R. A. 445. (2) In admitting evidence and refusing instructions thereon, the court committed reversible error. (a) Evidence of thresher engine sparks should have been excluded, and defendant's instructions 7 and 8, directed to the elimination of the improper testimony received, should have been given. Campbell v. Railroad, 121 Mo. 349; Sheldon v. Railroad, 14 N.Y. 223; Railroad v. Richardson, 91 U.S. 454; Railroad v. Gilbert, 52 F. 711; Mills v. Railroad, 76 S.W. 30; Railroad v. Barrow, 20 S.W. 165; Railroad v. Richardson, 99 S.W. 642; Railroad v. Short, 77 S.W. 936; 16 Cyc. 1114; 33 Cyc. 1372-1376; Campbell v. Railroad, 121 Mo. 349; Cotton Co. v. Railroad, 114 F. 133. (b) Maddock's wife was incompetent to testify in behalf of his assignee. Johnson v. Burks, 103 Mo.App. 230; Wheeler, etc. Co. v. Tinsley, 75 Mo. 458; White v. Chaney, 20 Mo.App. 389; Gardner v. Railroad, 124 Mo.App. 461; City of Joplin ex rel. v. Freeman, 125 Mo.App. 717; Bank v. Wright, 104 Mo.App. 242; Fishback v. Harrison, 137 Mo.App. 634. (c) Anna Knoll's opinion as to whether sparks from the kettle-fire in the yard could have ignited the roof should also have been excluded. Gavish v. Railroad, 49 Mo. 274; Kent v. Miltenberger, 15 Mo.App. 480; Railroad v. Stock Yards Co., 120 Mo. 541; Koenig v. Railroad, 176 Mo. 698. (3) Plaintiff's instructions 1, 2 and 3 should have been refused, because they authorized a recovery exceeding $ 558.85, the limit of plaintiff's liability to Maddock. Sec. 3151, R. S. 1909; Walker Bros. v. Railroad, 68 Mo.App. 471; Foster v. Railroad, 143 Mo.App. 547; Ins. Co. v. Railroad, 74 Mo.App. 106; Brown v. Fire Ins. Co., 83 Vt. 161; Dyer v. Railroad, 99 Me. 195; Railroad v. Roper. 36 L. R. A. (N. S.) 954; Ins. Co. v. Railroad, 20 L. R. A. 410; Life Ins. Co. v. Richards, 99 Mo.App. 93; Whitemore v. Supreme Lodge, 100 Mo. 36; Life Ins. Co. v. Rosenheim, 56 Mo.App. 27; Huesner v. Life Ins. Co., 47 Mo.App. 336; Morrison Adm'r v. Marine & Fire Ins. Co., 18 Mo. 262; 19 Cyc. 638; Sun Ins. Office v. Merz, 63 N. J. L. 365. (4) The injury, from opposite counsel's argument for including in the verdict expenses of delay and litigation, should have been prevented by the court. Selby v. Railroad, 122 Mich. 311; Railroad v. Nesbit, 40 Tex. Civ. App. 309; Haynes v. Town of Trenton, 108 Mo. 133.
Noell & Noell for respondent.
(1) Appellant's counsel complain of plaintiff's instructions numbered 1, 2 and 3 because they authorized a recovery exceeding $ 558.85, the amount of the insurance paid by plaintiff to George Maddock. Appellant's counsel seem to overlook the fact that the assignment from Maddock to plaintiff conveys to plaintiff Maddock's entire cause of action for the damage done him by the fire. Without an assignment from Maddock the plaintiff insurance company would have been subrogated to Maddock's right to recover damages from defendant to the extent of $ 558.85, the amount of the insurance paid Maddock by plaintiff. Ins. Co. v. Railroad, 149 Mo. 165; Ins. Co. v. Railroad, 74 Mo.App. 106. But the assignment carried to plaintiff Maddock's entire cause of action against defendant, which was the entire damage sustained by Maddock by reason of the fire. Snyder v. Railroad, 86 Mo. 613; Smith v. Kennett, 18 Mo. 154; Dickson v. Elevator Co. , 44 Mo.App. 498; Childs v. Railroad, 117 Mo. 414; Chouteau v. Boughton, 100 Mo. 407. So far as the excess of damages sustained by Maddock over and above the amount of insurance paid him is concerned, plaintiff is a trustee of an express trust and entitled to sue therefor in its own name under and by virtue of the assignment. And a claim can be assigned without consideration for collection only, and the assignment carries a valid title to the assignee which the defendant cannot dispute. R. S. 1909, sec. 1730. Bank v. Edwards, 84 Mo.App. 462; Beattie v. Lett, 28 Mo. 596; Reyburn v. Mitchell, 106 Mo. 366; Haysler v. Dawson, 28 Mo.App. 531. (2) The wife of George Maddock, having been left as his agent in charge of his house, was a competent witness in the case. R. S. 1909, sec. 6359; Basye v. Railroad, 65 Mo.App. 468; Reed v. Peck, 163 Mo. 333. And the agency of the wife can be proved by her own testimony. Reed v. Peck, 163 Mo. 338; Leete v. Bank, 115 Mo. 184; Long v. Martin, 152 Mo. 668. (3) Defendant's refused instructions 7 and 8 were, as hereinbefore stated, comments on the evidence, and for that reason were properly refused. These instructions both singled out certain evidence and commented on the force and effect thereof. Imboden v. Trust Co., 111 Mo.App. 220; Shanahan v. Transit Co., 109 Mo.App. 228; Smith v. Woodmen of World, 179 Mo. 137; Swink v. Anthony, 96 Mo.App. 420; Ewing v. Ewing, 44 Mo. 20; Carroll v. Paul's Adm'r, 16 Mo. 226; Fine v. St. Louis Schools, 30 Mo. 175. (4) It is plain from the testimony in this case that George Maddock's property was set on fire by a spark from one of defendant's engines. Hence the verdict of the jury and judgment of the court were for the right party. There was no error committed by the trial court against the defendant materially affecting the merits of the action. It is therefore respectfully submitted by counsel for respondent that there is no ground for reversing this case. R. S. 1909, sec. 2082; Cross v. Gould, 131 Mo.App. 585; Freeland v. Williamson, 220 Mo. 217; Stump v. Kopp, 201 Mo. 412; Mann v. Doerr, 222 Mo. 1; Berry v. Railroad, 214 Mo. 593; Armelio v. Whitman, 127 Mo.App. 698; Logan v. Field, 192 Mo. 54; O'Keefe v. Railroad, 124 Mo.App. 613; Chaplin v. Transit Co., 114 Mo.App. 256.
--This is an action for damages alleged to have been sustained by one George Maddock, in consequence of the destruction by fire of a dwelling and outbuilding owned by Maddock, the fire, it is alleged, having been communicated to the buildings from sparks thrown out by an engine of the defendant. Maddock, the owner, carried insurance on the property. After the fire he was paid $ 558.85 by the insurance company on the loss. Whereupon he assigned his claim for damages against the railroad company for the loss to the insurance company, plaintiff below, respondent here. It is by virtue of this assignment that plaintiff instituted this action, in which it was awarded a verdict in the sum of $ 636.85. Judgment following, defendant, filing a motion for new trial and saving exception to that being overruled, has duly perfected appeal to this court.
Here counsel for appellant assign four grounds on which reversal is asked.
The first error assigned is to the refusal of the court to sustain the demurrers interposed by defendant to the testimony in the case. In support of this assignment it is claimed that defendant having introduced evidence tending to show the true source of the fire to have been other than the sparks from the engine, it devolved upon plaintiff to produce circumstantial evidence of the strongest character; it had failed in this and from the circumstantial evidence produced in the case, no rational inference could be drawn that the fire had been caused by sparks from the engine, the remoteness of time when an engine passed the premises being alone sufficient to preclude recovery. We dispose of this assignment by saying that the evidence connected with the fire, the movements of the engine, the escape of sparks, in short, all matters connected with the origin of the fire were fully gone into and there was substantial evidence to warrant the jury in arriving at its verdict, so far as relates to the origin of the fire; that is, that it originated from sparks from a passing engine, operated by the defendant's employees. While there was no direct testimony as to this, the circumstantial evidence was sufficient to warrant the jury in arriving at the conclusion which it did as to the origin of the fire.
The second error assigned is to the admission of evidence and refusal of instructions thereon. The principal evidence objected to was that of a witness who testified as to the distance sparks thrown off by the...
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