Kenefick v. Norwich Union Fire Ins. Society

• Decision Date: 29 May 1907
• Citation: Kenefick v. Norwich Union Fire Ins. Society, 103 S.W. 957, 205 Mo. 294 (Mo. 1907)
• Parties: KENEFICK v. NORWICH UNION FIRE INS. SOCIETY.
• Court: Missouri Supreme Court

103 S.W. 957

205 Mo. 294

KENEFICK v.NORWICH UNION FIRE INS. SOCIETY.

Supreme Court of Missouri. Division No. 1.

May 29, 1907.

1. APPEAL — DEMURRER TO EVIDENCE — THEORY OF CAUSE — ESTOPPEL.

Where, at the close of the evidence, defendant excepted to the court's refusal to sustain its demurrer to the evidence, defendant by requesting instructions on the theory of the case submitted to the jury did not estop itself to object on appeal that the court erred in overruling a demurrer to the evidence.

2. SAME — RECORD — INSTRUCTIONS — ORDER OF REQUESTS.

In the absence of an abstract specifying the order in which instructions were asked, it will be presumed on appeal that they were asked in due order and sequence.

3. INSURANCE — FIRE POLICY — EXPLOSIVES — FORFEITURE.

Though a fire destroying the insured property was not caused by explosives stored in the building, contrary to the terms of the policy, and though the explosives were removed in time to prevent an explosion, breach of the condition was material to the risk, and avoided the policy, under Rev. St. 1899, § 7973 [Ann. St. 1906, p. 3791], providing that no condition in an insurance policy shall be construed otherwise than as a representation, unless material to the risk insured against.

Appeal from Circuit Court, Lawrence County; H. C. Pepper, Judge.

Action by William Kenefick and another, doing business as the Kenefick-Hammond Company, against the Norwich Union Fire Insurance Society.From a judgment for plaintiff, defendant appealed to the St. Louis Court of Appeals.Judgment of circuit court reversed, and case certified to the Supreme Court.Affirmed.

Fyke & Snider, for appellant.Edw. J. White, for respondent.

LAMM, J.

In the St. Louis Court of Appeals, Bland, P. J., wrote, and, with the concurrence of his learned brethren on that bench, there was handed down in this case, the following opinion (119 Mo. App. 308, 80 S. W. 694):

"The facts as developed at the trial are correctly set out in appellant's statement as follows: `On June 2, 1903, appellant issued to respondents its policy of insurance for $1,000, covering the property described in said policy as follows: "$1,000 on their stock of supplies consisting of hay, grain and feed, scrapers, wagons, plows and other tools and supplies kept in their warehouse; all while contained in the one and one-half story brick building with composition roof situate on lots Nos. 14 and 15, block No. 3, street Nos. 143-145 West Olive street, Aurora, Missouri."'The respondents were railroad contractors engaged in grading a railroad some miles from Aurora.They used dynamite in blasting rock encountered in their work.They kept a powder magazine about a mile and a half or two miles from the city of Aurora, where they usually kept their powder and dynamite.They did not ordinarily keep powder or dynamite in the building described in the policy, but the building was used to store grain, hay, plows, scrapers, and such articles while not in use, and occasionally men in respondents' employ were permitted to sleep in the warehouse.The building was close to the center of the city of Aurora.Under the city ordinances no one was allowed to keep within the city fire limits of the city, or within one block of the public square or any schoolhouse or church, a greater quantity of blasting powder than 25 pounds, or a greater quantity of nitroglycerin (dynamite) than 1 pound.The building described in the policy was within the fire limits, and one block from the bank of Aurora, and one block from the Frisco depot.One Woodfill was appellant's agent at Aurora, and countersigned the policy.At the time the policy was issued no powder or explosives of any kind were stored or kept in the building, and up to that time, and until the time hereinafter mentioned, nothing of the kind had been kept or stored in said building.On the contrary, respondents had kept their explosives, except such as were in use along the line of work, in a powder magazine constructed and located for that express purpose.All merchants doing business in Aurora, who handled powder, also had powder magazines located out of the city, and it was not usual or customary for merchants in Aurora to keep or allow about their business houses in the city any explosives except in very small quantities.When the policy was applied for and issued, no request was made for permission to store or keep explosives in the building, and, as before stated, no explosives were there at that time or at any time prior thereto.On September 19, 1903, a fire occurred which destroyed the building and a portion of its contents.About a week before the fire occurred Woodfill went away from Aurora, and did not return until after the fire.Up to the time he left nothing had been said to him about placing or storing dynamite or other explosives in the building, and up to the time Woodfill went away no such articles had been kept or placed in the building.On Tuesday or Wednesday before the fire, which occurred on Saturday, the respondents stored in the building described in the policy about two tons of dynamite, 12,500 exploders, and 1,500 caps.These explosives had been in the car on the railroad track about four days before they were put in the warehouse.Respondents were compelled (presumably by the railroad company) to take the stuff out of the cars, and put the same in the warehouse, because respondents could not get teams to haul it to their magazines, and because their magazines were full.All the explosives above mentioned were in the building at the time of the fire.The appellant had no notice of such fact, nor did its agent, because he went away from the city before the dynamite was in the building and did not return until after the fire.When the fire occurred, it does not appear that any one representing respondents was about the premises.When the alarm was given, the fire department went to the scene and began trying to extinguish the fire.It soon became noised around that there was powder in the building.Whereupon the populace, usually attendant upon fires, withdrew to a safer place, and the firemen began to explore for exploders, etc., and finally located the dynamite in a room which was so located that they had to chop with their axes their way to the powder, and through the heroism of the firemen, who risked their lives in the work, the dynamite and other explosives were removed in time to save an explosion, which would probably have resulted in loss of life, as well as great damage to property in the city.The policy contains the following provisions: `This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void, * * * if the hazard be increased by any means within the control or knowledge of the insured, * * * or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used, or allowed on the above-described premises * * * gunpowder exceeding twenty-five pounds in quantity, naptha, nitroglycerin, or other explosives.'If the appellant had known that the dynamite and other explosives were put, kept, or allowed in the building, it would have canceled the policy as quickly as possible.At the close of all the evidence the defendants moved the court to instruct the jury that the plaintiffs could not recover.The court refused to give this instruction, and gave instructions so declaring the law to the jury that it was so enabled to, and did, bring in a verdict for the plaintiffs for the full amount of the policy.A motion for a new trial proving of no avail, defendant appealed.

"1.That the storage of powder and other explosives mentioned in answer and the evidence was a violation of the terms of the policy does not admit of a doubt.The agent of appellant, who signed and delivered the policy to the plaintiffs, tried very hard to swear that he knew powder was kept in the building when he issued the policy; but when he was pinned down to what he actually knew, it was shown that he had no such knowledge, and the evidence shows that it was not usual to keep powder in the building described in the policy of insurance.Because the fire did not originate from the explosives temporarily stored in the building, it is contended by respondents that they did not contribute to the loss, and for this reason the policy is protected by section 7973, Rev. St. 1899[Ann. St.1906, p. 3791], which provides, in substance, that no condition in any policy of insurance shall be taken or construed as other than a mere representation unless it is material to the risk insured against.The construction the respondent would have us put upon this section is that no condition of a policy of insurance shall be construed as other than a mere representation unless it contributed to the loss.Such construction would be a perversion of both the language and meaning of the statute.In Dolanv. Ins. Co., 88 Mo. App., loc. cit. 672, Judge Ellison of the Kansas City Court of Appeals, in respect to this section, said: "This statute does not avoid all warranties, but only such as are not material to the risk.All matters warranted which are material to the risk are left just as they were before the statute.'And cited in support of this construction the construction of simlar statutes in March v. Ins. Co., 186 Pa. 629, 40 Atl. 1100, 65 Am. St. Rep. 887, andBrown v. Ins. Co., 172 Mass. 498, 53 N. E. 129.The construction contended for by the plaintiffs would deny to fire insurance companies the right to limit the risk against which they would issue policies of insurance.That the storage of the explosives in the building by plaintiffs increased the risk and was a clear violation of the express provisions of the contract of insurance admits of no doubt.By this act the policy was forfeited, and the plaintiffs should have been nonsuited, unless there was a waiver of the forfeiture.There is nothing in the evidence...