Kennefick-Hammond Co. v. Norwich Union Fire Ins. Soc.

• Citation: 80 S.W. 694,119 Mo. App. 308
• Parties: KENNEFICK-HAMMOND CO. v. NORWICH UNION FIRE INS. SOC.
• Decision Date: 26 April 1904
• Court: Court of Appeal of Missouri (US)

80 S.W. 694

119 Mo. App. 308

KENNEFICK-HAMMOND CO. v. NORWICH UNION FIRE INS. SOC.

St. Louis Court of Appeals. Missouri.

April 26, 1904.

FIRE INSURANCE — POLICY — EXPLOSIVES—FORFEITURE —STATUTE—APPEAL AND ERROR—ESTOPPEL—DEMURRER TO EVIDENCE—THEORY OF CASE.

1. Though the fire causing the destruction of insured property did not originate from explosives stored in the building, contrary to the terms of the policy, and though the explosives were removed from the burning building in time to prevent an explosion, the insurer is not liable on the policy, notwithstanding Rev. St. 1899, § 7973, providing 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.

2. Under a policy insuring goods while located and contained in a building described on premises described, and providing that, if illuminating gas or vapor be generated in the building, or there be kept, used, or allowed on the premises dynamite or other explosives, the policy shall be void, a contention that explosives stored in the building were not forbidden by the policy is untenable.

3. Where at the close of all the evidence defendant offered a demurrer to the evidence, which the court refused to grant, and an exception to the ruling of the court was saved, the appellate court is required to review all the evidence heard on the trial, and determine for itself whether there is substantial evidence in support of the verdict; and hence a contention that defendant in such case was estopped to raise an objection to the action of the trial court in overruling its demurrer to the evidence and submitting the issues to the jury, because the case was tried on a theory adopted by defendant, is without merit.

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

Action by the Kennefick-Hammond Company against the Norwich Union Fire Insurance Society. From a judgment for plaintiff, defendant appeals. Reversed.

Fyke Bros. & Snider, for appellant.

BLAND, C. J.

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 one thousand dollars, 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 school house or church, a greater quantity of blasting powder than twenty-five pounds, or a greater quantity of nitroglycerine (dynamite) than one 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 the same was put in the warehouse, because respondents could not get teams to haul it to their magazine, and because their magazine was 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 put 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 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...