I. H. Lawrence & Son v. Merchants' & Mechanics' Mut. Aid Soc.

• Decision Date: 29 September 1925
• Docket Number: No. 18855.,18855.
• Court: Missouri Court of Appeals
• Parties: I. H. LAWRENCE & SON v. MERCHANTS' & MECHANICS' MUT. AID SOC.

277 S.W. 588

I. H. LAWRENCE & SON v. MERCHANTS' & MECHANICS' MUT. AID SOC.

No. 18855.

St. Louis Court of Appeals. Missouri.

September 29, 1925.

Rehearing Denied October 30, 1925.

Appeal from Circuit Court, Perry County; Peter H. Huck, Judge.

"Not to be officially published."

Action by I. H. Lawrence & Son against the Merchants' & Mechanics' Mutual Aid Society. Judgment for plaintiffs, and defendant appeals. Affirmed.

Hines & Hines, of Jackson, and Ward, Reeves & Oliver, of Caruthersville, for appellant.

Sam Bond, of Perryville, and H. E. Alexander and Spradling & Dalton, all of Cape Girardeau, for respondents.

SUTTON, C.

This is an action upon two fire insurance policies, one for $1,500, and the other for $700, issued to plaintiffs by the defendant, covering on the plaintiffs' stock of groceries, goods, wares, and merchandise. The $1,500 policy was issued on May 19, 1921, and the $700 policy was issued on October 4, 1921. The stock insured was contained in a store building at Delta, Mo. On January 23, 1922, while the policies were in force, the stock was totally destroyed by fire.

The petition is in two counts. The first count declares upon the $1,500 policy, and the second count declares upon the $700 policy. The cause was tried to a jury. There was a verdict for plaintiffs for $1,344 on the first count and for $627.20 on the second count, aggregating $1,971.20, and judgment was given accordingly. Defendant appeals. The plaintiffs, I. H. Lawrence and Virgil Lawrence, are copartners doing business under the firm name of I. H. Lawrence & Son. The defendant is a mutual insurance company organized and doing business under the provisions of article 17, c. 50, Revised Statutes of Missouri 1919.

At the close of all the evidence in the cause, the defendant requested the court to give to the jury an instruction in the nature of a demurrer to the evidence as follows:

"The court instructs the jury that under the pleadings and the evidence the plaintiffs cannot recover and your verdict must be for the defendant."

The refusal of the court to give this instruction is assigned here as reversible error.

In support of this assignment, the defendant insists that the plaintiffs wholly failed to prove the value of the goods covered by the policies in suit. This insistence is not sustained by the record. Plaintiff Virgil Lawrence testified that he made an invoice of the stock on January 8 and 9, 1922, which inventory was destroyed by the fire, that at the time the inventory was made the stock on hand amounted in value to something like $4,200, and that at the time of the fire the value of the stock on hand was in the neighborhood of $3,800. He identified a carbon copy of a statement of plaintiffs' loss, mailed to the defendant by the plaintiffs' attorney, and testified that the value of the goods as therein stated correctly represented the value of the goods on hand at the time of the tire. Therein the value of the goods was stated as follows: Groceries, $3,347.18; dry goods, $150; queensware, $109; meats and lard, $150; and fruits, $100. It was also shown by the defendant that this plaintiff made a statement to the officers of defendant shortly after the fire that in his opinion the value of the goods on hand at the time of the fire was about $3,500.

But defendant insists that the policy declared on in the first count of the petition covers on "stock of groceries," that the policy declared on in the second count covers on "merchandise, goods, and wares," and that, assuming that the evidence was sufficient to show the value of the entire stock, there was no evidence to show the value of the groceries separately from the other goods, and that the demurrer to the evidence should have been sustained on this ground. This insistence must be ruled against defendant for two reasons:

First. There was evidence tending to show the value of the groceries and other goods separately.

Second. The demurrer was general in its character and was directed to the proof upon the whole case. There were no specific demurrers offered as to the insufficiency of the proof to support the respective counts of the petition. If, as defendant assumes, the evidence was sufficient to show the value of the entire stock, it was sufficient to authorize a verdict for plaintiffs under the second count of the petition, though it were insufficient to authorize a verdict under the first count, for the policy declared on in the second count covered the entire stock, and it necessarily follows that the demurrer to the evidence as to the whole case was properly overruled. The defendant procured the court to instruct the jury that the burden of proof in the case upon the issues under each count in the petition was upon the plaintiffs, and that to entitle the plaintiffs to recover they were required to prove "the actual cash value of their property destroyed," that the plaintiffs could in any event only recover "the actual value of their stock at the time of the loss," and that, if the plaintiffs negligently and carelessly caused the fire which destroyed their property, then they could only recover one-half "the actual value of the property destroyed."

Manifestly, in this state of the record, the trial court may not be convicted of error for refusing to sustain the demurrer for insufficiency of the evidence to show separately or as a whole the value of the goods destroyed.

The defendant pleaded and proved a by-law of the defendant which provides as follows: "No gasoline or coal oil shall be stored in any room or warehouse where a fire of any kind is maintained." The defendant contends that the plaintiffs' evidence concedes the violation of this by-law, and that therefore its demurrer to the evidence should have been sustained.

The plaintiff I. H. Lawrence testified that there were two stoves in the store, one heater and one coal oil cook stove; that the store was lighted by gasoline lamps; that they did not keep any coal oil or gasoline in the store, only as they used it; that they kept the coal oil and gasoline under a shed in the back yard; that at the time the fire occurred there was about a half gallon of coal oil in a can in the store, which was brought into the store to be used in the coal oil cook stove; that there was also a little gasoline in a can in the store for use in the gasoline lamps; that they did not keep gasoline or coal oil stored in the building.

Mrs. J. B. Lawrence, a daughter-in-law of I. H. Lawrence, testified that she was working in the store immediately before the fire; that Virgil was at home in bed, sick; that there was a half gallon of coal oil in the store at the time of the fire; that she brought it in there for the coal oil stove; that the coal oil stove was used for cooking; that the coal oil and gasoline were kept in a shed in the back of the building, out in the yard; that there was no gasoline kept in the building at the time of the fire; that the gasoline can was in the store, but that there was no gasoline in it; that on the afternoon before the fire she went out and got a gallon of gasoline and filled up the gasoline lamps, but that she did not leave any of the gasoline in the can.

It is manifest that the coal oil and gasoline kept in the building temporarily and in small quantities for consumption in the coal oil stove and gasoline lamps, as detailed by the witnesses, were not "stored" in the building within the meaning of the by-law in question. Renshaw v. Missouri State Mutual Fire & Marine Ins. Co., 103 Mo. 595, loc. cit. 605, 15 S. W. 945, 23 Am. St. Rep. 904; Rafferty v. New Brunswick Fire Ins. Co., 18 N. J. Law, 480, loc. cit. 483, 38 Am. Dec. 525; Phcenix Ins. Co. v. Lawrence, 4 Mete. (61 Ky.) 9, loc. cit. 11, 81 Am. Dec. 521; O'Niel v. Buffalo Fire Ins. Co., 3 N. F. 122, loc. cit. 127; New York Equitable Ins. Co. v. Langdon, 6 Wend. (N. Y.) 623, loc. cit. 628; Phoenix Ins. Co. v. Taylor, 5 Minn. 492, loc. cit. 502 (Gil. 393); Williams v. Fireman's Fund Ins. Co., 54 N. Y. 569, loc. cit. 572, 13 Am. Rep. 620.

The defendant assails plaintiffs' instructions Nos. 1 and 2 on the ground that they direct a verdict far plaintiffs and ignore certain defenses pleaded by the...