Marshall v. Thames Fire Ins. Co.

• Decision Date: 31 March 1869
• Parties: MARSHALL and KILPATRICK, Respondents, v. THE THAMES FIRE INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

43 Mo. 586

MARSHALL and KILPATRICK, Respondents,

v.THE THAMES FIRE INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

The steamboat Magnolia was insured in the month of December, 1865, and was destroyed by fire during the night of the 13th or 14th of June, 1866; and this is one of a number of suits brought by her owners against various insurance companies on policies of insurance on the steamer. The facts pertinent to the issues of law decided may be gathered from the opinion of the court.

Gantt, Knox, and Rankin, for appellant.

Sharp & Broadhead, and Glover & Shepley, for respondents.

WAGNER, Judge, delivered the opinion of the court.

Notwithstanding the voluminous record in this case, the real matter in controversy may be compressed within a very small compass. The issues framed by the parties made the result turn purely on questions of fact; and if there was no misdirection by the court, or error in its ruling, the finding of the jury cannot be disturbed. The petition alleged that by the policy of insurance the boat was valued at one hundred and sixty thousand dollars, and that at the time of its loss or destruction by fire it was of the value of one hundred and twenty-five thousand dollars, and more than all the insurance thereon. The defendant, in its answer, did not controvert this allegation, but averred as matter of defense that the burning of the said steamboat Magnolia, the boat described in the petition, was occasioned, caused, and brought about by the direct agency, procurement, contrivance, and direction of Marshall and Kilpatrick, the plaintiffs. The whole defense was distinctly staked upon that issue, giving the defendant the affirmative; and all material allegations in the petition, which were well pleaded, stood admitted. The question of pleading is of essential importance in view of the instruction of the court, which will presently be adverted to. It may not be easy to define on all occasions what are material averments in a petition. An immaterial averment need not be denied, but a material one must be, else it will be taken as confessed. The practice act requires that the plaintiff shall make in his petition a plain and concise statement of the facts constituting his cause of action; and when issue is intended to be joined upon those facts, the answer of the defendant must contain a special denial of each material allegation. Under the common-law system of pleading, if the joinder was on an immaterial issue, the court would award a repleader.

The allegation that the boat was worth one hundred and twenty-five thousand dollars was immaterial, and required no denial. But is the same true of the further averment that she was worth “more than all the insurance thereon?” The statement was of consequence, because there was other insurance on the boat besides the policy of the defendant, and it became necessary to show the relation which the value of the boat bore to the amount of insurance. For if the amount of insurance was greater than the value, the plaintiffs could only recover in the proportion that the value bore to the boat. The instruction complained of told the jury “that it stands admitted by the pleadings in the case that the value of the steamboat Magnolia, at the time of the fire which destroyed her, was greater than the whole amount for which she was insured.”

I have no doubt about the correctness of the instruction. The allegation was, in substance, that the boat was worth more than the whole amount for which she was insured; and had there been a denial interposed--if the plaintiffs had not proved the truth of the statement, or it had been proved to be untrue--no recovery could have followed, except for the proportional part which they might have shown themselves entitled to.

The other instruction given for the plaintiffs was to the effect that it devolved on the defendant to prove to the...