Garrison v. U.S. Fidelity & Guaranty Co.

• Decision Date: 05 February 1974
• Docket Number: No. 35016,35016
• Citation: 506 S.W.2d 87
• Court: Missouri Court of Appeals
• Parties: Margaret GARRISON, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY CO., Defendant-Respondent. . Louis District, Division One

Page 87

506 S.W.2d 87

Margaret GARRISON, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY CO., Defendant-Respondent.

No. 35016.

Missouri Court of Appeals, St. Louis District, Division One.

Feb. 5, 1974.

Ziercher, Hocker, Tzinberg, Human & Michenfelder, Leonard D. Vines, Clayton, for plaintiff-appellant.

John H. Cunningham, Jr., Willson, Cunningham & McClellan, St. Louis, for defendant-respondent.

WEIER, Judge.

This is a case wherein plaintiff Margaret Garrison filed suit for the proceeds of a homeowner's policy of insurance which insured her against loss or damage by fire in the amount of $8,000.00 upon unscheduled personal property. Defendant insurance company denied liability on the insurance policy, urging that the plaintiff and her husband, Donald Garrison, intentionally caused the fire to be set. From a defendant's verdict and judgment thereon, the plaintiff Margaret Garrison has appealed. Although plaintiff has set forth four points relied on to reverse the judgment of the trial court, essentially there are two, each with variations on the same theme. In the first point, plaintiff contends that the evidence failed to support the giving of defendant's instruction which hypothesized that the fire was intentionally set for the purpose of burning the personal property by a person or persons acting for and with the knowledge and consent of the plaintiff. The second point, which is also directed to the inadequacy of the evidence, asserts that the verdict was against the weight of the evidence and that defendant did not meet its burden of proof in that it both failed to offer any positive identification as to who in fact may have started the fire and failed to prove that person started the fire with the knowledge and consent of the plaintiff. As to the first assertion under point two that the verdict was against the weight of the evidence, we do not weigh the evidence on appeal in a jury tried case. Beesley v. Howe, 478 S.W.2d 649, 653(7) (Mo.1972). As to the failure of the evidence either to support defendant's instruction or to prove a submissible defense under defendant's theory of the case, we consider the evidence favorable to the defendant, disregarding plaintiff's evidence unless it tends to support the submission. Rickman v. Sauerwein, 470 S.W.2d 487, 489(1) (Mo.1971). We therefore review the evidence favorable to the submission.

Margaret Garrison and her husband, Donald Garrison, were the owners of personal property situated at 7700 Jerome Avenue, Maplewood, Missouri. On March 18, 1969, Margaret Garrison was issued a homeowner's policy of insurance whereby she was insured against loss or damage by fire in the amount of $8,000.00 upon unscheduled personal property at this address. While this policy was in effect, a fire occurred on the premises on December 31, 1969, while plaintiff and her husband were in Chicago, Illinois. There was no dispute about the amount of the loss, it being agreed by plaintiff and an agent of the defendant that the amount of the loss was approximately $8,950.00. Prior to the time that Mr. and Mrs. Garrison left for Chicago, they had given an employee by the name of Bill Hornberg a key to the premises. He, at that time, used a Mustang automobile which the Garrison owned. Hornberg was described by Mrs. Garrison as being a young man, 18 to 20 years of age, of medium build, with blondish brown hair. On the night of the fire, Eugene Boldern, a 14-year-old boy who lived near plaintiff's house, while going to a party at the Salvation Army on the opposite side of the street, saw a young man whom he recognized as having worked in the recent past at the Garrison property, bearing this same description as Hornberg, open the garage door, pick up two gasoline cans, shake the contents all over the place, and then light a match. An officer of the Maplewood Fire Department, a detective for the City of Maplewood, and a detective on the bomb and arson squad of St. Louis County Police Department investigated the fire, and testified that there appeared to be a strong odor of paint thinner or other inflammable liquid when they entered the building. There appeared to be fire set in three separate places in the building, and, according to the opinion of one, the fire had been intentionally set.

Donald Garrison, although not a party to the lawsuit, was owner of some of the personal property covered by the insurance. He was also an additional insured under terms of the policy sued on. The building wherein the personal property was located had been purchased by the plaintiff and her husband in 1964 for $6,000.00, and they had made improvements on it. At the time of the fire it was insured for $35,000.00. The building also housed the corporate headquarters of Fiber-Lum, a home improvement business which was wholly owned by plaintiff and in which the husband performed supervisory and sales work. The Attorney General of Missouri obtained a restraining order which permanently stopped the operations of this business in July of 1969. $15,000.00 of insurance had been purchased on the contents of the building which pertained to the business operations. The market value on the property, both as to building and contents, was much less than the figure agreed upon by the owners with the insurance adjuster as to replacement cost less depreciation. Donald...