Copeland v. American Central Ins. Co.

• Decision Date: 06 June 1911
• Citation: 138 S.W. 557,158 Mo. App. 338
• Parties: COPELAND v. AMERICAN CENTRAL INS. CO.
• Court: Missouri Court of Appeals

138 S.W. 557

158 Mo. A. 338

COPELAND v. AMERICAN CENTRAL INS. CO.

St. Louis Court of Appeals. Missouri.

June 6, 1911.

Rehearing Denied June 30, 1911.

TRIAL (§ 187)—INSTRUCTIONS—WITNESSES—INTEREST.

An instruction in a civil case that, while the law permits plaintiff to testify in his own behalf, the jury, in weighing his testimony and in considering the credence to be given to it, may consider the fact that he is the plaintiff and is interested in the result of the suit, is reversible error.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Houston E. Copeland against the American Central Insurance Company. Judgment for defendant, and plaintiff appeals. Reversed.

S. N. & S. C. Taylor and H. A. & C. R. Hamilton, for appellant. George L. Edwards and Charles B. Obermeyer, for respondent.

REYNOLDS, P. J.

This was an action to collect from defendant, a fire insurance company of this state, the amount of a certain draft drawn by it under date August 11, 1909, in favor of one Blockburger and of one Taylor, the latter as trustee, the draft for the sum of $5,000 and expressed on its face to be in payment and settlement of a certain fire loss covered by a policy issued by defendant.

The second count of the petition, on which the case went to the jury, the first count being abandoned, avers that for value received defendant drew an inland bill of exchange upon itself, payable to the order of Blockburger and Taylor, trustee, for $5,000, payable on demand, and that Blockburger and Taylor, trustee, before presentation of the inland bill of exchange, for value, indorsed and delivered it to plaintiff, who, after he became the owner and holder thereof, deposited it with the National Bank of Commerce for collection, and defendant, though having promised to pay the same and though the inland bill of exchange was a promissory note within the meaning of the law, refused to pay it and arbitrarily demanded that the bank should withhold the note from plaintiff, the lawful owner and holder thereof, thereby converting it to the use of defendant; that plaintiff is an innocent holder of the promissory note, having acquired it before maturity and for value. Judgment is demanded as before, a certified copy of the note or bill and receipt being attached as an exhibit, the protest indorsed upon it, the originals averred to be in possession of defendant.

The answer, admitting the incorporation of defendant and the issue of the policy, which was attached as an exhibit to the answer, admits that plaintiff and Blockburger and Taylor claimed and represented to defendant that the property so insured by the policy had been wholly destroyed by fire and that defendant had become liable to pay them on account of the policy the $5,000 and had demanded payment thereof; that thereupon defendant, not being advised and having no knowledge or information of the facts and circumstances afterwards set out, agreed to pay the loss and to that end had caused to be drawn the draft. Excepting as above admitted defendant denied all the other allegations in the petition. As a further answer, defendant avers "that long prior to the time when it issued said policy of insurance, at said time, and at all the times herein mentioned, the plaintiff and others had combined and conspired together for the purpose of acquiring properties and equities in properties in the city and county of St. Louis and elsewhere, with a view to procuring fire insurance thereon, grossly in excess of the value of said properties and equities, causing the same to be destroyed by fire, and collecting such insurance from insurance companies insuring the same. That pursuant to said iniquitous and fraudulent combination and conspiracy, the...