Hale v. Central Mfrs. Mut. Ins. Co.

• Decision Date: 07 April 1936
• Docket Number: No. 23291.,23291.
• Citation: 93 S.W.2d 271
• Parties: HALE v. CENTRAL MFRS. MUT. INS. CO.
• Court: Missouri Court of Appeals

93 S.W.2d 271

HALE v. CENTRAL MFRS. MUT. INS. CO.

No. 23291.

St. Louis Court of Appeals. Missouri.

April 7, 1936.

Appeal from St. Louis Circuit Court; Frank C. O'Malley, Judge.

"Not to be published in State Reports."

Action by Paul Hale, trustee in bankruptcy of David Birenbaum, against the Central Manufacturers Mutual Insurance Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

Cullen, Fauntleroy & Edwards and Clem F. Storckman, all of St. Louis, for appellant.

Moser, Marsalek & Dearing, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action on a fire insurance policy, instituted in the circuit court of the city of St. Louis on December 10, 1930, seeking recovery for fire loss on the contents of a store building located at 2600 Wash Street, St. Louis. The insured property belonged to David Birenbaum at the time of the issuance of the policy and at the time of the occurrence of the loss. After the occurrence of the loss David Birenbaum was adjudged a bankrupt, and plaintiff was duly elected and qualified as his trustee in bankruptcy.

The cause was tried to a jury. At the conclusion of all of the evidence the court gave to the jury at the request of the defendant an instruction in the nature of a demurrer to the evidence. Thereupon plaintiff took an involuntary nonsuit with leave to move to set it aside. Thereafter plaintiff filed his motion to set aside the involuntary nonsuit. Said motion was by the court overruled, and plaintiff appeals.

The policy sued on was issued to David Birenbaum on May 10, 1928, in the sum of $6,000, for a term of five years.

In April, 1929, the amount of the policy was reduced by indorsement to $3,500.

The coverage of the policy is as follows:

"On all contents of an insurable nature, unless hereinafter excluded, owned or for which the assured may be legally liable or for which it has assumed liability in case of loss or damage by fire, all while contained in, on, or attached to the brick building and addition, situated 2600 Wash Street, St. Louis, Mo.

"If there be any contents specifically insured, this policy covers and attaches only after the specific insurance has been exhausted, applying co-insurance, reduced rate contribution, and average clauses.

"This policy is extended to cover all property insured hereunder while outside of buildings within one hundred feet of the above described building, and all contents for which liability must be specifically assumed under the standard provisions of this policy.

"Such property as is covered hereunder shall include property of the assured, or held by the assured in trust, or on commission or consignment, or sold but not removed, on storage or for alterations or repairs, and property belonging to others for which the assured may be liable in case of loss.

"This policy is extended to cover the assured's interest in improvements, additions and alterations to the building, provided the insured is not the owner of the building."

On July 29, 1929, Birenbaum obtained fire policies from four other companies, as follows:

The Western Fire Insurance Company, $1,500 on stock of drugs, and $500 on store furniture and fixtures.

National Reserve Insurance Company, $1,500 on stock of drugs, and $500 on store furniture and fixtures.

Hampton Roads Fire & Marine Insurance Company, $1,500 on store furniture and fixtures.

Columbian National Fire Insurance Company, $1,500 on stock of drugs, and $500 on store furniture and fixtures.

Each of these policies covered for a term of one year from its date.

On August 23, 1929, a fire occurred which destroyed all of the insured property.

On November 3, 1929, Birenbaum submitted to defendant a sworn statement as proof of loss. In this statement he set up his loss to his stock of drugs as $6,706.21, and to his furniture and fixtures as $3,035.15, making a total loss of $9,741.36. The statement assessed $4,500 of the loss on the stock of drugs, and $3,000 of the loss on the furniture and fixtures, against the four policies issued by the other companies, and the balance of $2,241.36, against the policy issued by defendant and here sued on.

In this proof of loss the policy issued by defendant and here sued on is designated as an excess or blanket policy, and the four policies issued by the other companies are designated as policies of specific insurance. Following the apportionment of the loss this statement appears in the proof: "After exhausting the specific insurance on stock and fixtures, claim is made against the excess policy for the balance of the loss. Claim is made against your company as shown in the apportionment."

On December 27, 1929, the defendant, with two of the other companies involved, requested an appraisal of the loss.

On January 23, 1930, the appraisers made their report and award, finding the loss to the stock of drugs amounted to $3,150 and to the furniture and fixtures $1,750, or a total of $4,900.

In July, 1930, plaintiff brought suit in the circuit court of the city of St. Louis against the four companies which issued the four so-called specific policies, praying damages as follows: Western Fire Insurance Company, $1,341.67; National Reserve Insurance Company, $1,341.67; Hampton Roads Fire & Marine Insurance Company, $874.99; Monarch Fire Insurance Company, reinsurer of Columbian National Fire Insurance Company, $1,341.67; total $4,900.

On December 6, 1930, said companies filed answers in said suits, and each defendant tendered $804.10 into court for plaintiff's use and benefit, with the exception of the Hampton Roads Fire & Marine Insurance Company, which made no tender. Said suits have never been brought to trial. The cases were still pending without any change in their status as above set out when the present case was tried.

On December 10, 1930, plaintiff brought the present suit, alleging that Birenbaum's loss in the fire was $4,900, and praying for judgment against the defendant in the sum of $3,500, with interest, damages, and attorney's fees.

No proof of loss was served upon defendant other than the one above mentioned, in which the defendant is sought to be held liable as an excess insurer, on the theory that the total loss was $9,741.36, and that $7,500 of this loss was covered by the specific insurance, leaving $2,241.36 to be paid by the defendant under its blanket or excess policy. There is no evidence in the record showing or tending to show, and in fact no claim is made, that the specific insurance, so called, granted by the four companies first sued, has been exhausted in any manner.

Defendant justifies the giving of the instruction in the nature of a demurrer to the evidence, on the ground that the defendant's policy, here in suit, is a blanket or compound policy, and that the insurance embodied in the other four policies is specific insurance. so that the policy in suit renders defendant liable only after the insurance embodied in the other four policies has been exhausted. On the contrary, plaintiff asserts that the policy in suit is ambiguous, and construed in the light most favorable to the insured renders defendant liable for its pro rata part of the loss.

A "blanket policy of insurance," as defined by the courts, invariably covers and attaches to every item of property described therein, so that if the loss of one item exhausts the whole amount of the policy the entire insurance must be paid, or, in other words, a blanket policy is one which insures property collectively without providing in the event of a loss for a distribution of the insurance to each item. On the other hand, "specific insurance" is insurance which in the event of loss is distributed among the several items in a specific amount to each item.

In the present case the policy...