A.F. Webb & Co. v. Prot. & Ætna Ins. Cos.

• Decision Date: 31 March 1851
• Citation: 14 Mo. 3
• Court: Missouri Supreme Court
• Parties: A. F. WEBB & CO. v. PROTECTION AND ÆTNA INS. COMPANIES.

14 Mo. 3

A. F. WEBB & CO.

v.PROTECTION AND ÆTNA INS. COMPANIES.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

These two cases were tried together in the court below, being submitted to the same jury on the same day on the same evidence; and the court having instructed the jury as hereinafter stated, the plaintiffs submitted to a non-suit in each case, moved to set the same aside for reasons, and on the refusal of the court so to do, appealed in each cause to this court. The petition, in each case, set out that the plaintiffs were insured by the defendants on their stock of goods in a store at St. Louis, according to the policy annexed to the petition. That the goods were, on the night of the 17th May, 1849, exposed to loss by fire. That three sides of the building containing them were surrounded by burning houses, and the building itself was partially on fire. That the plaintiffs endeavored to save the goods by removing and did remove them; and that in the removal they were pillaged, lost and destroyed, by reason and in consequence of the efforts so made by plaintiffs to save them from the fire, to the amount of four thousand nine hundred and seventy dollars. That due notice was given, and proof made of the loss, but that defendants refused to pay the same. The policy which was annexed to each petition contained in each case the following proviso, viz: “Provided, always, and it is hereby declared that this company shall not be liable to make good any loss by theft, or any loss or damage by fire which may happen or take place by means of any invasion, insurrection, riot or civil commotion or of any military or usurped power.” Among the conditions of insurance annexed to, and made part of each policy, is to be found the following, viz: “In case of fire, or loss or damage thereby, or of exposure to loss or damage thereby, it shall be the duty of the insured to use all possible diligence in saving and preserving the property; and if they shall fail to do so, this company shall not, be held answerable to make good the loss and damages sustained in consequence of such neglect.” In one of the policies (that of the Protection Insurance Company) this condition is twice repeated, viz: in the 9th and 17th conditions of insurance.

The defendants in their answers denied the loss, denied a compliance with the conditions of the policy, and also denied that the loss had been adjusted in each case; which answers were verified by affidavit of defendants' agents, residents here.

At the trial the plaintiffs read the policies in each case, and gave evidence tending to prove, the following facts, viz: That on the night of the 17th May, 1849, the stock insured by the policies was exposed to fire, the building in which the same was being surrounded on three sides by burning houses, and being actually on fire itself. That plaintiffs in conformity with the several sections of the conditions respectively of said policies, used all possible care to save the stock from the loss to which it was exposed by remaining in the building. That plaintiffs caused the stock to be moved from said burning building to the distance of a square or thereabouts, having first caused the more valuable parts thereof to be tied up in bundles, preparatory to the removal. That the burning building was on Main street, near Locust street. That the stock was removed to the corner of Locust and Second streets, and that after it was taken from the store of the plaintiffs, and before it was returned thereto, which was on the following day, a loss was sustained by pillage, waste and otherwise, to the amount of four thousand nine hundred and seventy-six dollars, all of which was the consequence of the attempt on the part of the plaintiffs to comply with the conditions annexed to the policies of insurance. That there was a great noise, crowd and disturbance, confusion and disorder in the streets of St. Louis on the night of the 17th May, 1849, that being the night of the great fire. That the goods so lost and missing by reason of said removal were stolen and pillaged by thieves who infested the streets on that night. That notice of the loss and preliminary proof of its amount and nature were made by the plaintiffs to the insurance companies, respectively, except so far as compliance with the conditions of the policies in this respect was waived by the said companies. That the insurance companies paid the damages done by fire to the stock remaining on hand after the fire, but refused to pay for such goods as had been lost to the plaintiffs by reason of the removal from the burning building. That the building in which the goods originally were was not destroyed or seriously injured by the fire. That said building was what is termed fire-proof, and that several other buildings also called and considered fire-proof, and insured as such, were burned on the same night. That the receipts given by the plaintiffs, and referred to in the answer of defendants, referred to the damages not to the lost goods; and that both parties at the time so understood them. That the plaintiffs did not on adjudging their claim for the damaged goods waive their claim for the lost goods. Plaintiffs then offered to prove that the defendants had paid similar losses to other persons insured by policies containing the same clauses and conditions as those read in evidence in this cause. The defendants objected; the court sustained the objection, and plaintiffs excepted.

Defendants asked the following instruction, which the court gave, the plaintiff objecting and excepting thereto, viz: “That the plaintiffs are not entitled to recover in this action, for the value of any goods stolen from them.”

Plaintiffs asked the following instruction: “If the jury believe from the evidence that the property of the plaintiffs was lost, as in their petition alleged, that the said property being exposed to loss and damage by fire, the said plaintiffs used all possible diligence to save and preserve the said property in good faith and according to the 7th condition of insurance, annexed to said policy, and that in consequence of such efforts to comply with and perform the said condition of said policy, the goods and property mentioned in the petition were lost, then the plaintiffs were entitled to recover.” Which instruction the court refused, and plaintiffs excepted. The plaintiffs thereupon took a non-suit, with leave to move to set the same aside, and on the same day filed a motion to set aside the non-suit for the following reasons: 1st. The court gave erroneous instructions. 2nd. The court refused proper instructions. 3rd. The court excluded competent evidence from the jury. The court overruled the motion, and the plaintiffs excepted and appealed to this court.

GANTT, for Appellants. 1. That the “loss by theft” mentioned in the policies which are the foundation of these actions, is, by the context, confined to such theft as might arise from, or grow out of, or “happen, or take place by means of any invasion, insurrection, riot or civil commotion, or of any military or usurped power.” 2. That at all events the conditions of insurance, being positive and unmistakable, will control any proviso which precedes those conditions or ambiguous in itself, and at variance with the conditions imposed upon the insured. 1 Duer on Ins. 162 and following. 3. The conditions of the policies require the assured, under heavy penalties, to do certain contingencies. The assured, in attempting to carry out the conditions of the policies, are the agents of the companies, and the companies are liable for all the consequences of an attempt made in good faith to comply with the conditions of the policies. 4. If there be any contrariety between the proviso and the conditions of the policies, the companies who have created the contradiction cannot claim to have it resolved in their favor, nor if the meaning of the policies be rendered equivocal or obscure, by the phraseology adopted by the companies, can they now ask for any interpretation which the event alone indicates as the most favorable to them. The language of the law is pactionem obscuram iis nocere quorum in potestate fuit rem apercius dicere--(an obscure phrase is to be construed against him who could have rendered it unequivocal, but did not.) Palmer v. Warren Ins. Co., 1 Story, 360; Donnell v. Columbia Ins. Co., 2 Sumner, 381; Duer on Ins. 209; 1 Marshall on Ins. 305. 5. The loss is one for which the assurers are liable, unless exempted expressly and unmistakably from liability by the terms of the policies. 1 Burrows, 341; Pelly v. Governor & Co. of the Royal Exch. Assur. Co.; Levi v. Ballie, 7 Bing. 349; Yeaton v. Fy, 5...