Hicks v. Empire Ins. Co.

• Decision Date: 26 November 1878
• Citation: 6 Mo.App. 254
• Parties: RALPH HICKS ET AL., Respondents, v. THE EMPIRE INSURANCE COMPANY, Appellant.
• Court: Missouri Court of Appeals

6 Mo.App. 254

RALPH HICKS ET AL., Respondents,

v.THE EMPIRE INSURANCE COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 26, 1878.

1. An insurance policy contained a stipulation that should “petroleum or its products” be kept on the steamboat insured the policy should be void. In an action on the policy, testimony was given tending to show that ““mineral sperm-oil,” the name of the oil used in lighting the boat, was a fancy name. A witness, being shown a bottle containing a fluid called “mineral sperm-oil,” was asked whether the odor of the oil indicated the presence of petroleum, no connection between the oil used on the boat and that exhibited to the witness being shown. Held, that the exclusion of this testimony was proper.

2. Where the insurer objects to the proofs of loss on the ground that certain particulars are not furnished, and that the proofs are made by an agent and not by the owner, and states that when the corrections are made the proofs will be received, it being known at the time of this promise to be physically impossible to have the corrections made and the proofs returned within the time required by the policy, if the assured, relying on the promise, complies with the insurer's demands in the shortest possible time, and fulfils all the required conditions, except that the corrected proofs are not furnished until after the expiration of the thirty days limited in the policy, this is a substantial compliance with the terms of the policy respecting proofs of loss.

APPEAL from St. Louis Circuit Court.

Affirmed.

J. M. & C. H. KRUM, for appellant: As to the sufficiency of proofs of loss.-- St. Louis Ins. Co. v. Kyle, 11 Mo. 289; Noonan v. Hartford Ins. Co., 21 Mo. 81; Sims v. State Ins. Co., 47 Mo. 59; German Bank v. Studley, 1 Mo. App. 260; Cole v. Long, 1 Mo. App. 215; Worsley v. Wood, 6 Term Rep. 710; Johnson v. Phœnix Ins. Co., 112 Mass. 49; Underwood v. Farmers' Ins. Co., 57 N. Y. 500.

GIVEN CAMPBELL, for respondents: Proofs of loss.-- Russell v. Insurance Co., 55 Mo. 585; Tinsley v. Insurance Co., 23 Wend. 377; Insurance Co. v. Steamer, 11 Mo. 278; McLaughlin v. Insurance Co., 23 Wend. 525. A substantial compliance with the requirements of the policy as to such proofs is sufficient.-- Sims v. Insurance Co., 47 Mo. 54; O'Conner v. Insurance Co., 31 Wis. 160; Bartlett v. Insurance Co., 46 Mo. 500. Waiver.-- Schenck v. Insurance Co., 24 N. J. 447; Clark v. Insurance Co., 6 Cush. 342.

LEWIS, P. J., delivered the opinion of the court.

Plaintiffs sue upon a policy of insurance, in the sum of $2,500, against loss by fire on their steamboat “Mary Belle,” which was burned at the Vicksburg landing, on February 27, 1876. The Circuit Court gave judgment for the plaintiffs; from which the defendant appealed.

A stipulation in the policy was as follows: “If the assured shall keep * * * petroleum or its products, by whatever name designated, without written permission in this policy, then, and in every such case, this policy shall be void.” The testimony tended to prove that an article called “mineral sperm-oil” was used in lighting the boat. One of the witnesses testified that he was a manufacturer and dealer in linseed and chemical oils, and that, according to his understanding, “mineral sperm-oil” was a fancy name for one of the products of petroleum. On cross-examination, he said that he had never made the article, and did not know what were its ingredients, and that he was not a chemist. His only knowledge on the subject was derived from the statements of manufacturers. No other testimony was introduced to show of what materials mineral sperm-oil was composed. The jury were instructed that if they found from the evidence that mineral spermoil was used as charged, and further that such oil was a product of petroleum, their verdict must be for the defendant. Their finding, consequently, upon the question of fact leaves nothing in this connection for our review, unless there was error in the admission or exclusion of testimony.

The defendant offered to introduce a vial of mineral sperm-oil for examination by the jury, and also desired the witness to state what was indicated, as to the presence of petroleum, by the odor of its contents. Both these forms of testimony were, upon the plaintiffs' objection, excluded by the court. The defendant claims that this was error.

It was not pretended that the contents of the vial produced by defendant were taken from the stock of oil which was in use on the boat. No connection whatever existed between the two articles, except in their common name. As this was said to be a “fancy name,” it might have been applied by different manufacturers, or even by the same manufacturers, to very different compounds. Nothing could fairly be determined upon the question at issue from a mere inspection of the fluid. Its appearance would give no certain information, even to the eye of a chemist. Its odor might announce the presence of petroleum, but whether as the base of the product or as a mere ingredient no jury could be able to say. A chemical analysis would be the best, and therefore the only admissible, evidence of the composition of the article produced; and even then the question would remain whether it was identical with the fluid that was used on the boat. No precedent is furnished in the case of Williamson v. Fischer, 50 Mo. 198, cited by counsel. There the map offered in evidence was of a survey actually made upon the land in controversy, and not upon another tract known by the same name or having a similar general description. The proposed testimony was too remote and inconclusive for that certainty and precision which should always control judicial investigation. There was no error in its exclusion.

Defendant contends that the plaintiffs failed to comply with the following stipulation in the policy: “Persons sustaining loss or damage by fire shall forthwith give notice of such loss to the company in writing, and, within thirty days after the loss shall have occurred, render a particular account of such loss, signed and sworn to by them, stating whether any and what other insurance has been made on the same property, giving copies of the written portions of all policies thereon, and the cash value of the property and their interest therein; * * * and shall also produce a certificate, under the hand and seal of the magistrate or notary-public nearest the place of the fire, stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has, without fraud, sustained loss on the property insured to the amount which such magistrate or notary-public shall certify.”

It appeared from the testimony that the boat was owned by the plaintiffs, Ralph Hicks, Alfred Grissom, and Richard Guinnot. The policy was issued to “Ralph Hicks, for account of owners.” The loss occurred on February 27, 1876. J. F. Hicks, the father of Ralph, was captain in charge of the boat, but owned no interest in her, and the plaintiff Grissom was her clerk.

Grissom was present at the fire, but the captain had gone temporarily up into the city of Vicksburg, where the boat lay. On the day after the fire, a protest setting forth the facts of the loss, with the leading particulars, was subscribed and sworn to by Capt. Hicks, the plaintiff Grissom, and other officers of the boat. The other owners, it appears, were not present, and were residing in Tennessee.

Authentic copies of the protest were sent to all the insurance companies-- eighteen in number, including the defendant--against whom policies were held by the owners. The defendant then objected to the protest for insufficiency under the terms of the policy. It does not clearly appear from the bill of exceptions that, at this stage in the proceedings, the defendant pointed out specifically its objections to the protest as a proof of the loss. On March 21st, Capt. Hicks went to the office of the local agents of defendant in St. Louis, who produced printed forms for proofs of loss, and caused them to be filled up under their direction and to be signed by Capt. Hicks, who had been furnished with a special power of attorney for the purpose by the owners. The proofs thus prepared were sent to the home...