Loehner v. Home Mut. Ins. Co.

• Decision Date: 31 March 1854
• Citation: 19 Mo. 628
• Parties: LOEHNER & WIFE, Respondents, v. THE HOME MUTUAL INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

19 Mo. 628

LOEHNER & WIFE, Respondents,

v.THE HOME MUTUAL INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1854.

1. Same case, 17 Mo. 247, affirmed.

2. It is irregular practice for a court to comment upon evidence by way of instruction to a jury.

Appeal from St. Louis Court of Common Pleas.

The facts of this case sufficiently appear in the opinion of the court, when it was formerly here (17 Mo. 247) and in the opinion which follows.

Hill, Grover & Hill, for appellant, (among other points, which were settled when the cause was formerly here) insisted that the court below erred in giving the third instruction, which was an extract from the former opinion of this court, and was a mere comment upon the facts, calculated to mislead the jury. Upon the whole case, they cited the following authorities: 3 Dall. 491; 1 Wash. C. C. R. 283. Howell v. Cincinnati Insurance Co., 7 Ham. (part 1,) 276; 2 Denio 75.

H. N. Hart, for respondent.

SCOTT, Judge, delivered the opinion of the court.

This case is reported in the 17th vol. Mo. 247. After the cause was remanded, upon a trial of so much of it as related to the insurance on the piano and furniture covered by the policy, there was evidence that the secretary, who countersigned the policy, was frequently at the house before it was insured, and often drank wine there, and advised the plaintiff Jeannettine, to have her house insured. The secretary, by the by-laws of the company, filled up and recorded all policies, and was ex-officio a director. The record shows that the notice of an assessment, required by the by-laws to be given to the insured, to the end that the benefit of the policy may be forfeited in the event of the non-payment of the assessment, had never been given.

The court gave the following instructions:

1. If the jury believe from the evidence, that the house in question was used as a bawd house, or as a tippling house, or dram-shop, and that such use of the house was concealed from the defendant, and that any one of such facts, so concealed, was material to the risk, then the plaintiff cannot recover.

2. In inquiring into the materiality of the facts alleged to be suppressed, it is important for the jury to consider that, by the by-laws of the defendant, all buildings to be insured were classed, and the premiums on them proportioned to the risk incurred, and that the trades and kinds of merchandise were enumerated for which an increased premium was demanded, and that none of the facts alleged to be material and suppressed in this case, were mentioned in the by-laws, as affecting the risk.

3. The jury will also take into consideration only the natural consequences of the use to which the house was applied, and whether an enhancement of the risk or of loss by fire was a natural consequence of such use.

4. The jury are further instructed, that there is no evidence tending to show a refusal or failure of the plaintiff, Jeannettine, to pay any assessment which, by the requirements of the policy, she was bound to pay, and therefore that defence, set up in this case, the jury will disregard.

5. The jury are instructed, that the defendant has not shown that there was any insurrection of the citizens at the time of the loss of property mentioned in the policy, and, therefore, that is no defense, in this cause, for the consideration of the jury.

The court refused the following instructions:

1. If the jury believe from the evidence, that, at the time of the application for insurance in this case, the said Jeannettine Clementine described the building insured and containing the property insured as a dwelling house, and it was so described in the written application for insurance, and that, in fact, the said Jeannettine, at the time of the loss of said property insured, kept in said premises a bawdy house, or house of ill-fame, commonly called and known as a whore house, and that the risk of fire upon a bawdy house or whore...