Hallander v. Jefferson Mut. Fire Ins. Co.

• Decision Date: 06 January 1920
• Docket Number: No. 15573.,15573.
• Citation: Hallander v. Jefferson Mut. Fire Ins. Co., 218 S.W. 418 (Mo. App. 1920)
• Parties: HALLANDER v. JEFFERSON MUT. FIRE INS. CO.
• Court: Missouri Court of Appeals

218 S.W. 418

HALLANDER v.JEFFERSON MUT. FIRE INS. CO.

No. 15573.

St. Louis Court of Appeals. Missouri.

January 6, 1920.

Appeal from St. Louis Circuit Thomas L. Anderson, Judge.

"Not to be officially published."

Action by M. Hollander against the Jefferson Mutual Fire Insurance Company.Judgment for defendant, and plaintiff appeals.Affirmed.

Fauntleroy, Cullen & Hay, of St. Louis, for appellant.

Anderson, Gilbert & Hayden, of St. Louis, for respondent.

BIGGS, C.

The appellant, who was the plaintiff below, sues upon a fire insurance policy which insured the plaintiff against all direct loss or damage by fire except as stated in the policy.

One of the conditions or exceptions of the policy was as follows:

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

No question arises on the pleadings.The petition is in the usual form, alleging the issuance of the policy and a total loss of the personal property insured which consisted of the usual contents of a saloon or dramshop, being a stock of wines and liquors and also the fixtures.The petition alleges ownership in the plaintiff of all of the property, which was situated at 314 Market street, in the city of St. Louis.

The defendant's answer was a general denial, followed by a specific denial of the ownership of the property in the plaintiff, and also set up the exception in the policy heretofore stated, and alleged that whatever loss, if any, was sustained by plaintiff was wholly caused by an explosion which occurred on the premises.The reply was a general denial.

Upon the cause being submitted to a jury there was a verdict and judgment for the defendant.The plaintiff brings the cause here for review mainly on the ground that the court erred in giving to the jury an instruction asked by the defendant which will be hereafter referred to.

The point is also made by the appellant to the effect that the court erred in allowing the case to go to the jury, for the reason that there is no evidence tending to sustain the defense.No instruction to that effect was asked by the plaintiff, and, even had it been asked, there would have been no justification in the giving of such an instruction, for the reason that in this record there is ample evidence tending to show that the damage was caused by an explosion.

The main proposition raised by the appeal is whether the court erred in giving to the jury at the request of the defendant the following instruction:

"The Court; "The court instructs the jury that, under the terms of the policy sued on, the defendant is not liable for any damage caused by explosion of any kind unless fire ensued; and, if there was an explosion, and fire ensued thereafter, defendant is liable only for the actual damage caused by such fire, and is not liable for any damage caused by said explosion or on account of the fall of the roof, walls, or floors of the building."

"The court gave an instruction asked by the plaintiff and which embodied his theory of his right to recover, as follows:

"In determining whether the property insured was damaged or destroyed by fire, the jury may find that it was so damaged or destroyed if they believe from the evidence that a fire of some description upon some part of the premises was the original cause of the loss, although they may also find from the evidence that such fire was followed by an explosion, which was itself the direct result of the fire, and which brought about the damage to the insured property; in other words, if the jury believe from the evidence that the fall of the buildings and damage to the property was the direct result of some burning substance in contact with some part of said property, it is immaterial whether such result manifested itself in the form of combustion or of explosion, or of both combined.In either case the damage which ensued was by the action of fire, `and it is covered by the terms of the policy sued on in this action."

In addition to the instruction above referred to, and which the appellant contends was error to give, the court gave another instruction asked by the defendant as follows:

"If you find that on the occasion mentioned in the evidence there was an explosion in the building occupied by plaintiff which caused the roof, walls, and floor of the building to collapse and fall in, and that said explosion was not caused by fire, and if you further find and believe from the evidence that the damage to plaintiff's property was all caused by such explosion, then the plaintiff is not entitled to recover and your verdict must be in favor of the defendant."

Plaintiff contended that there was a fire preceding the explosion which was the original cause of the loss, and that, although an explosion followed the fire, still under the terms of the policy the plaintiff could recover.

There is no controversy over the correctness of plaintiff's theory of recovery under the policy, but the defendant denies that there was a fire preceding the explosion, and...