J. G. Siegle & Son v. Phoenix Insurance Company of Brooklyn
| Decision Date | 25 April 1904 |
| Citation | 81 S.W. 637,107 Mo.App. 456 |
| Parties | J. G. SIEGLE & SON, Respondents, v. PHOENIX INSURANCE COMPANY OF BROOKLYN, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Ray Circuit Court.--Hon. J. W. Alexander, Judge.
Cause affirmed.
Fyke Bros., Snider & Richardson for appellant.
(1) The evidence of these witnesses was not admissible in rebuttal it should have been offered by respondents in chief. Chrystal v. Craig, 80 Mo. 367. (2) The court erred in giving instruction 3 on the part of respondents. If the total insurance exceeded three-fourths the actual cash value of the property respondents were not entitled to recover. Hence the court erred in refusing to give defendant's instruction 7. Dolan v. Ins. Co., 88 Mo.App. 666.
Conkling & Rea and S. J. Jones for respondents.
(1) It is a well-settled principle of practice that the order in which testimony shall be introduced in the trial of a cause is almost entirely within the discretion of the trial court and even if not strictly in rebuttal such an error would not ordinarily justify a reversal, unless it should appear that that discretion had been abused. Ferry v. Railway, 162 Mo. 75; Weller v. Railway, 164 Mo. 180; Burns v. Whelan, 52 Mo. 520; McFarland v Association, 124 Mo. 204. (2) The court did not err in giving instruction 3 on the part of respondents. Neither did the court err in refusing to give defendant's instruction 7. The respondents were entitled to recover, even if the total insurance exceeded three-fourths of the actual cash value of the property. R. S. 1899, secs. 7969, 7970 and 7979; Baker v. Ins. Co., 57 Mo.App. 559; Gibson v Ins. Co., 82 Mo.App. 515.
Plaintiffs' action is upon a policy of fire insurance issued by defendant to plaintiffs on the fifteenth day of January, 1902, insuring them against loss by fire for a period of one year upon their stock of lumber at Hale, Missouri, in the sum of $ 1,500. There was also other insurance on the stock and lumber sheds aggregating ten thousand dollars. On February 22, next after the date of the policy, a fire occurred which destroyed the entire property covered by all the aggregate insurance. A short time after the fire, defendant's adjuster, Milton Welch, went to Hale to investigate the loss, and where he found that all of plaintiffs' books and inventories kept prior to the first day of December, 1901, had been destroyed by fire; but there was an inventory of that date which defendant claimed plaintiffs had nothing by which it could be verified and nothing by which to show purchases prior or subsequent thereto. The defendant requested plaintiffs to furnish from wholesale dealers or other lumber merchants from whom they had purchased lumber for the previous fifteen months duplicate invoices of lumber sold to them. Plaintiffs, in pursuance of this request, procured a large part of such invoices at some expense and trouble and sent them to the said adjuster. It does not appear that the adjuster made any objections to said invoices or required any additional information in that respect.
The policy contained a requirement that proof of loss should be furnished defendant sixty days after the fire. The plaintiffs failed to furnish such proof within the time stipulated, but they claim that this provision of the policy in that respect was waived by the defendant's denying all liability thereunder. The evidence as to that was as follows: The adjuster said to a third party in the presence of one of the plaintiffs: "Here is a man I have got a loss with and it will be a damned long time before he gets a cent." This seems to us in effect a denial of liability; and, as such, a waiver of proof of loss. Vining v. Ins. Co., 89 Mo.App. 311.
The defendant contends that instruction number three given for plaintiffs was erroneous. It is as follows:
And defendant maintains that consequently the court erred also in refusing to give instruction number seven asked by it and which is as follows:
The difference is that plaintiffs' instruction limits their right of recovery to the amount of the policy, less depreciation at the time of the fire; while that of defendant precluded recovery if the amount of insurance was in excess of three-fourths of the cash value of the property at the time of the fire. In other words, the defendant's contention is that a depreciation of the property after the time of insurance avoids the policy. This can not be the law. To so hold would destroy the business of insuring personal property because of the liability of depreciation. The defendant has cited as upholding its view the case of Dolan v. Ins. Co., 88 Mo.App. 666, but that case does not...
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