Fair Mercantile Co. v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 07 December 1943
• Citation: 175 S.W.2d 930,237 Mo.App. 511
• Parties: Fair Mercantile Company, Appellant, v. St. Paul Fire & Marine Insurance Company, Respondent
• Court: Missouri Court of Appeals

175 S.W.2d 930

237 Mo.App. 511

Fair Mercantile Company, Appellant, v. St. Paul Fire & Marine Insurance Company, Respondent

Court of Appeals of Missouri, St. Louis District

December 7, 1943

Appeal from the Circuit Court of the City of St. Louis; Hon. Wm. B Flynn, Judge.

Affirmed.

Otto F. Karbe and Albert E. Hausman for appellant.

(1) It is reversible error to permit a witness to give his opinion or draw his own conclusion, unless the subject of inquiry is so indefinite and general in its nature as not to be subject to direct proof and concerns matters about which the jury is incapable from want of experience or knowledge to draw its own proper conclusion. Hence it was reversible error to permit the witness Doerr to testify that in his opinion the house north of appellant's store was destroyed by explosion. Miller v. Great American Ins. Co., 61 S.W.2d 205; Rodefer v. Grange Mutual Ins. Co., 91 S.W.2d 112; Cole v. Empire District Electric Co., 331 Mo. 824, 55 S.W.2d 434. (2) It was error to give respondent's Instruction No. 3, because said instruction does not leave it to the jury to find whether there was an explosion, but assumes an explosion as a fact, and then instructs the jury that appellant cannot recover for any damage caused by explosion. Beck v. Musick, 7 S.W.2d 307. (3) Where insured's stock of goods was damaged by smoke or water proximately caused by a fire in adjacent premises the insurance company is liable. Hence appellant was entitled to recover its loss by reason of smoke, grit flaming roofing paper or water entering its premises proximately because of the fire in or on adjacent premises. Jiannetti v. Nat. Fire Ins. Co., 277 Mass. 434; Cohn v. Nat. Fire Ins. Co., 96 Mo.App. 315; Newmark v. Ins. Co., 30 Mo. 160.

John R. Stockham and Anderson, Gilbert, Wolfort, Allen & Bierman for respondent.

(1) The trial court did not err in giving Instruction No. 3. (a) Instruction No. 3 did not assume that there was an explosion. Rowland et al. v. Boston Ins. Co., 227 Mo.App. 597 55 S.W.2d 1011; Beck v. Musick, 222 Mo.App. 417, 7 S.W.2d 307. (b) It is immaterial whether or not the explosion on neighboring property was preceded by a hostile fire. Cohn & Greenman v. National Ins. Co., 96 Mo.App. 315, 70 S.W. 259; Exchange Bank of Novinger v. Iowa State Ins. Co., 218 Mo.App. 587, 265 S.W. 855. (c) Instruction No. 3 did not preclude recovery for damages done by smoke, sparks and flaming bits of roofing paper, soot and grime carried by the wind through broken windows and on the plaintiff's merchandise. (2) There was no error in permitting respondent's expert witness Bernard J. Doerr to testify that in his opinion an explosion occurred in the Burrano Building. (a) The testimony of Doerr as an expert witness was cumulative evidence to that brought out by plaintiff's cross-examination of another witness and other evidence, and there was no error in its admission. Parker v. Aetna Life Ins. Co., 289 Mo. 42, 232 S.W. 708. (b) No objection was made at the trial of the cause that Doerr was not qualified as an expert witness. Herrington v. Hoey et al., 345 Mo. 1108, 139 S.W.2d 477; Farher v. Missouri Pacific Ry. Co., 139 Mo. 272, 40 S.W. 932. (c) The subject of whether or not there was an explosion was one upon which it was proper for Doerr to give his opinion. Cole v. Uhlman Grain Co., 340 Mo. 277, 100 S.W.2d 311; Mann v. Grim-Smith Hospital & Clinic, 347 Mo. 348, 147 S.W.2d 606; Wood v. Metropolitan Street Ry. Co., 181 Mo. 433, 81 S.W. 152; Glasgow v. Metropolitan Street Ry. Co., 191 Mo. 347, 89 S.W. 915; 7 Wigmore on Evidence (3 Ed.), sec. 1976, p. 121; O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55; Phares v. Century Electric Co., 336 Mo. 961, 82 S.W.2d 91; Banks v. State, 208 Ind. 317, 196 N.E. 73; Combs v. Rountree Construction Co., 205 Mo. 367, 104 S.W. 77; City of Aurora v. Fireman's Fund Ins. Co., 180 Mo.App. 263, 165 S.W. 357; Thompson v. Chicago, R. I. & P. Ry. Co. (Mo. App.), 4 S.W.2d 894; Robinson v. St. Louis, Iron Mountain & Southern Ry. Co., 21 Mo.App. 141; Zein v. Pickel Stone Co. (Mo. App.), 273 S.W. 165; Cropper v. Titanium Pigment Co. (C. C. A. 8th), 47 F.2d 1038; Vitale v. Duerbeck, 338 Mo. 556, 92 S.W.2d 691; Hartford Fire Ins. Co. v. Empire Coal Co. (C. C. A. 8th), 30 F.2d 794; Raymore v. Kansas City Public Service Co. (Mo. App.), 141 S.W.2d 103; Rodefer v. Grange Ins. Co. of Lewis Co. (Mo. App.), 91 S.W.2d 112; Miller v. Great American Ins. Co. (Mo. App.), 61 S.W.2d 205; Grechijian v. Richmond Ins. Co., 25 N.E.2d 191.

McCullen, J. Hughes, P. J., and Anderson, J., concur.

OPINION

McCULLEN

This action at law was brought by appellant, as plaintiff, to recover from respondent, as defendant, on a policy of fire insurance, the amount of loss which plaintiff alleged it suffered because of a fire in buildings adjacent to plaintiff's store from which sparks, flaming bits of roofing paper, soot, grime and dirt entered plaintiff's premises damaging its stock of merchandise. A trial before the court and a jury resulted in a verdict and judgment in favor of defendant. Plaintiff duly appealed.

Plaintiff's petition alleged the issuance by defendant of its policy of fire insurance covering a stock of furniture, stoves, heaters, carpets, rugs, and numerous other house furnishings while contained in the three-story brick building situated at 1828-1830 Edwards Avenue in the City of St. Louis, Missouri, insuring plaintiff in a sum not to exceed $ 6000 against all direct loss or damage by fire on the property described while contained in said building.

It was provided in the policy that:

"This company shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot . . . or (unless fire ensues, and, in that event, for the damage by fire only) by explosion of any kind, or lightning."

The petition further alleged that on May 27, or May 28, 1931, while the insured merchandise was located in plaintiff's said building, a fire occurred, and, as a direct result thereof, said insured property of plaintiff was damaged. Plaintiff prayed judgment for $ 1,976.99, together with a penalty for defendant's alleged vexatious refusal to pay and for attorney's fees.

Defendant's amended answer consisted of a general denial followed by allegations that the policy mentioned in plaintiff's petition provides that the defendant company "shall not be liable for loss caused directly or indirectly by explosion of any kind unless fire ensues, and, in that event, for the damages by fire only." The answer then alleged that on or about May 27, 1931, an explosion occurred in a dwelling situated at 1824 Edwards Street in the City of St. Louis, which dwelling was the second building from the premises occupied by plaintiff, and that any loss suffered by plaintiff was the direct result of said explosion; that no fire ensued in the premises occupied by plaintiff, and that any loss or damage to the contents of the building occupied by plaintiff was not within the coverage of the policy.

The reply of plaintiff was in the nature of a general denial.

The policy of insurance sued on was introduced in evidence as plaintiff's exhibit "A", after which Phillip Paull, President of plaintiff company, testified that about 12:30 A. M. on May 28, 1931, he went to the building where the company conducted its business and found the second building north of plaintiff's building in flames. Said building was a small dwelling house and is referred to in the evidence as the Burrano building. The witness stated that the first building north of plaintiff's building, another small dwelling house, was separated from plaintiff's building by an areaway about eight feet wide; that the buildings on either side of the Burrano building also were on fire; that all of the windows in plaintiff's building were out; that there was a crowd of people in plaintiff's building, and that he found sparks, roofing paper, tar paper, shingles and splinters flying into plaintiff's building from the north. The witness testified that an inventory, which was introduced in evidence as plaintiff's exhibit "D", was taken under his supervision and that said inventory was presented to the defendant; that defendant returned the inventory and denied liability; that the Burrano building was a frame structure covered with wooden shingles, tar paper and roofing paper; that when the witness got to the scene the flames in the Burrano building were higher than the flames of the buildings north and south of the Burrano building; that on the first floor of plaintiff's building plaintiff had living room suites, clothing and dry goods, and on the second floor heavy articles such as stoves. The loss, as shown in plaintiff's exhibit "D", the inventory, was $ 2,212.13.

Mr. Paull, further testifying, identified a paper carton containing clothing that plaintiff had in its building at the time of the fire and stated that certain white spots thereon were from water and smoke that came into plaintiff's premises. He also testified that when he got to the scene there was a crowd of people in plaintiff's building; that firemen were in there and that two or three hundred people crowded around the windows to look at the fire; that firemen were throwing water from these windows onto the adjoining premises. The witness then described the damage done by water and smoke to various articles of furniture and merchandise that were in plaintiff's building, stating that linoleum was broken up and wet from people walking on it; that a rug was wet, mashed in; that enamel on stoves was smoked, chipped and wet; that furniture and clothes were scorched and burned; that lamp shades were soiled, smoked, bent and broken; that lace curtains, bedspreads and pillow cases were everywhere.

At the conclusion of Mr....