Hayward v. The Employers Liability Assurance Corporation, Limited
| Decision Date | 08 January 1924 |
| Citation | 257 S.W. 1083,214 Mo.App. 101 |
| Parties | HARRY E. HAYWARD, Respondent, v. THE EMPLOYERS LIABILITY ASSURANCE CORPORATION, LIMITED, OF LONDON, ENGLAND, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon Benjamin J. Klene, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
A. & J F. Lee and Joseph Renard for appellant.
(1-2) Defendant's demurrer to the evidence should have sustained, because plaintiff failed to establish that the loss of the liquor which he claimed disappeared was occasioned by its felonious abstraction from the interior of plaintiff's house. Schindler v. U. S. Fidelity, etc Co., 109 N.Y.S. 723; Gordon v. Aetna Indemnity Co., 116 N.Y.S. 558; Polstein v. General Accident Co., 158 N.Y.S. 868; Duschene v. National Surety, 139 N.Y.S. 881; See, also, 46 L. R. A. (N. S.) 567; Frankel v. Mass. Bonding Co., 177 S.W. 775. (3) That the court erred in refusing to give and read to the jury defendant's Instructions E, needs no citation of authorities. (4-5) The court erred in refusing to give and read to the jury defendant's Instruction F, and allowing plaintiff to introduce evidence to show the fictitious and unlawful value of liquor at the time of the alleged disappearance. Section 6, Ttle 2 of an Act for the enforcement of War Time Prohibition; Murphy v. St. Joseph Transfer Co., 235 S.W. 138. (6) There is no testimony to support the award to plaintiff in the verdict of attorney's fee, and the court erred in allowing said verdict to stand over defendant's objection and exception. Berryman v. Motor Co., 199 Mo.App. 503; Blackwell v. Ins., Co., 80 Mo.App. 75; Weston v. Ins. Co., 191 Mo.App. 282; Lafont v. Ins. Co., 157 Mo.App. 671; Patterson v. Ins. Co., 174 Mo.App. 37; Strawbridge v. Ins. Co., 193 Mo.App. 687.
Nagel & Kirby and Milton R. Stahl, for respondent.
(1) The intoxicating liquors involved in this case were articles of value, the possession and use of which are sanctioned and protected by law. National Prohibition Act, Title 2, sec. 33, 41 Stat. L. 317; Regulation No. 60, Bureau of Internal Revenue, section 80; Street v. Lincoln Safe Deposit Co. et al., 254 U.S. 88; Murphy v. St. Joseph Transfer Co., 235 S.W. 138; Chicago Bonding and Insurance Co. v. Oliner, 139 Md. 408; Hall v. Moran, 81 Fla. 706; State v. Friedman, 120 A. 8 (1922, New Jersey), same case on motion for rehearing, 120 A. 9. (2) The court properly overruled appellant's demurrer to the evidence because there was sufficient evidence of theft. Fienglas v. New Amsterdam Casualty Co., 151 N.Y.S. 371; Orlando v. Great Eastern Casualty Co., 155 N.Y.S. 20; Stich v. Fidelity and Deposit Co. of Maryland, 159 N.Y.S. 712; Hass v. Fidelity and Deposit Co. of Maryland, 160 N.Y.S. 1101; Fine v. New Amsterdam Casualty Co., 162 N.Y.S. 135; Wolf v. Aetna Accident and Liability Co., 170 N.Y.S. 787; Fidelity and Deposit Co. of N. Y. v. Dulany, 125 Md. 486; Great Eastern Casualty Co. v. Boli, 187 S.W. 686; Miller v. Mass. Bonding and Casualty Co., 247 Pa. 182. (3) Because the property had no market value at the time or place of loss, or because its value is difficult of ascertainment does not prevent the recovery of substantial damages. In such cases wide latitude is given in the introduction of evidence as to value. Atchison, Topeka & Santa Fe Rld. Co. v. Stanford, 12 Kan. 354; Southern Express Co. v. Owens, 146 Ala. 412; Johnston v. Farmers' Fire Ins. Co., 106 Mich. 96; Milwaukee Trust Co. v. Milwaukee, 151 Wis. 224; Chicago Bonding and Ins. Co. v. Oliner, 139 Md. 408. (4) Objections to the introduction of evidence not raised in the trial court cannot be raised on appeal. Coughlan v. Haeussler, 50 Mo. 126; Gaty v. United Railways Co. , 286 Mo. 503; Baldwin v. Kansas City Rys. Co., 231 S.W. 280; Clooney v. Wells, 252 S.W. 72. (5) There was evidence to support the award of an attorney's fee for vexatious delay. Brown v. Railway Passenger Assurance Co., 45 Mo. 221; Lockwood v. Insurance Co., 47 Mo. 50; Hicks v. Metropolitan Life Ins. Co., 186 Mo.App. 162.
This is a suit upon a policy of theft insurance to recover for the loss of certain liquors alleged to have been stolen from the residence of plaintiff. The cause was tried to a jury with a verdict for plaintiff in the sum of $ 500, the amount named in the policy, together with $ 47.50 interest; "damages, for vexatious refusal to pay $ 100; attorney's fees, $ 100;" total $ 647.50. Defendant brings the case here on appeal.
The evidence shows, and indeed it is conceded, that plaintiff had a policy of burglary and theft insurance with defendant insurance company at the time the loss is alleged to have taken place. The terms of this policy comprehended intoxicating liquors, and ran from June 19, 1919, to June 19, 1920, covering the residence of the plaintiff at 5154 Waterman avenue, St. Louis. The policy provided that in case of loss the measure of liability was to be the actual cash value of the property at the time of the loss. According to plaintiff's testimony he acquired the liquors, the loss of which is here involved, prior to January 17, 1920, when prohibition became effective; that up until the effective date of prohibition these liquors were stored in cellars or vaults of the Racket Club and the St. Louis Country Club, two social organizations, the one within and the other near the city of St. Louis. Plaintiff says that about January 15, 1920, he was notified by the two clubs that because of the prohibition laws, all liquors had to be removed and he thereupon removed his store of liquors to his residence at 5154 Waterman avenue, this city. This removal took place about January 17, 1920. At the time the liquors were removed the clubs made an inventory and placed a list of the different liquors with each lot. These lists plaintiff checked over to determine if he had received all of his liquors and he found them to be correct. When the liquors reached his residence they were placed in two closets upstairs and in a locked storeroom in the basement. No one had access to the locker or closets except the plaintiff, his sister and his two servants, both of the servants having died before the time of the trial. On March 30, 1920, about ten weeks after the liquors were stored in plaintiff's residence at 5154 Waterman avenue, he moved to 5843 Waterman avenue. On that occasion it was discovered that some of the liquor had been stolen or taken away. Plaintiff ascertained that a case of gin had been broken into and that ten bottles from the case had been removed. On the next day plaintiff carefully checked up the liquors with the lists which had accompanied same when it was delivered from the clubs to his residence, and found that one case of Steinwender's Green Label Bourbon Whiskey, ten bottles of Gordon Gin, four bottles of Bicardi Rum and three bottles of Tom Gin had been taken. Plaintiff testified that between January 15 and March 30, 1920, he had consumed none of the liquor, nor that his sister or anyone else with his permission had taken any of same. Plaintiff notified the police and made out proof of loss, as required by the policy sued upon. The defendant declined to pay the claim and insisted on a settlement on the basis of the original cost of the liquor before prohibition.
There is no point made on the pleadings. Appellant insists that its demurrer to the evidence should have been sustained because plaintiff failed to establish that the loss of the liquor which he claimed disappeared was occasioned by its felonious abstraction from the interior of plaintiff's house. In other words, that there was not sufficient evidence of the theft of the liquors to take the case to a jury. The evidence, we think, is ample to justify the submission of that issue to a jury. The evidence tended to show that the liquors were removed from the two social clubs to the residence of plaintiff about January 17, 1920. A list of the articles accompanied the lot, and this list was checked by plaintiff. On redirect examination, the following appears in plaintiff's testimony in this particular:
The liquor was then stored by him in two closets upstairs and the remainder in a locked storeroom in the basement and kept secure from outsiders. Subsequently, on March 30, 1920, the loss in the basement was discovered, and it was also discovered that a case of gin in the basement had been broken into, and a check by plaintiff of his liquors showed the loss as charged.
Appellant on this point relies upon cases which are to the effect that where property merely disappears and there is no evidence beyond the mere fact that same has disappeared that, it may be deemed just as likely that the property was lost or misplaced as that it was stolen, and that in such case there is not sufficient evidence of theft to take the case to a jury, the inference that the property may have been misplaced or lost being just as strong as the inference that same had been stolen. These cases are of no influence here, we think. We have examined these cases and all involve the loss of jewelry or personal property of a character which could very easily be accidentally misplaced or lost, such as watches rings, bracelets, etc. The property here is of bulk and proportion that same could not easily be lost or misplaced. We think the evidence here is enough to show circumstances sufficient to raise the inference that the liquors were stolen. The policy under consideration does not contain the provision that the insured must produce direct evidence or...
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