Grossman v. American Ins. Co.

• Decision Date: 10 June 1918
• Docket Number: No. 12959.,12959.
• Parties: GROSSMAN v. AMERICAN INS. CO.
• Court: Missouri Court of Appeals

204 S.W. 947

GROSSMAN v. AMERICAN INS. CO.

No. 12959.

Kansas City Court of Appeals. Missouri.

June 10, 1918.

Appeal from Circuit Court, Jackson County; W. 0. Thomas, Judge.

"Not to be officially published."

Action by Edward Grossman against the American Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Robert Rooney, of Kansas City, for appellant. Fyke & Snider, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is to recover loss by fire under an insurance policy issued to him by defendant. He had judgment in the circuit court.

Defendant makes three points for reversal of the judgment. These he names in his statement and his specific enumeration of points, as required by our statute and rules. Sections 2080, 3941, R. S. 1909; rules 16 and 17 (169 S. W. xiv). The first relates to the ruling of the trial court permitting testimony to be induced as to the statement made by Collins claimed by plaintiff to have been defendant's adjuster. On objection being made that there was no proof that Collins was defendant's adjuster, plaintiff's counsel stated that that would be "connected up" by such proof. In point of fact it was not referred to again, save that instructions were given as to the statements said to have been made by Collins. We think it sufficiently appeared, prima fade, that Collins was the adjuster, without any further evidence than was had at the time of defendant's objection. When the fire occurred, plaintiff telephoned to defendant's agents, and they said "they would send their adjuster down," and he—

"came down as their representative. * * * He came down to the store and said, `Is your name Grossman?' and I said, `Yes;' and he said, `Did you call up Muehlschuster & Jaiser' [the agents]? and I said, `Yes;' and he said, `I came down to see about this fire; I am the adjuster.' He looked around the place and said, `You had quite a loss?' I said, `Yes, somewhat.' He said, `Have you the policy?' and I said, `Yes; and handed him the policy. He said, `What kind of business did you run here?' and I said, `Restaurant and delicatessen.' He said, `That lets me out altogether; this insures a grocery store;' and he walked out. I said, `You can see it has been transferred to 17 and 19 East Sixth Street;' and he said, `I have got nothing to do with that,' and walked out."

Defendant made no effort to show that Collins was not its adjuster, and we think the foregoing enough to show prima fade that Collins was the adjuster, and that therefore it did not need to be connected up. It is a rule of evidence that, where one party raises an inference by the testimony in his favor and the knowledge of the truth of such inference lies in the knowledge of the other party, the inference may be taken as the fact, if the other party remains silent and does not rebut it. Clifford v. Donovan, 195 Mo. 266, 285, 94 S. W. 527; Frame v. Sovereign Camp, 67 Mo. App. 127, 135; Thomas v. Insurance Co., 198 Mo. App. 533, 205 S. W. 533.

The...