Meriwether v. Phenix Ins. Company
| Decision Date | 17 May 1909 |
| Citation | 119 S.W. 535,137 Mo.App. 96 |
| Parties | HUNTER M. MERIWETHER, Appellant, v. PHENIX INSURANCE COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thomas J. Seehorn, Judge.
AFFIRMED.
Judgment affirmed.
Metcalf Brady & Sherman for appellant.
(1) The only question in the case is, did the insurance policy sued upon, insure the property which was destroyed. (2) The defendant knew of the character of the business conducted by the insured and its surroundings, also the kind of power with which the plant was operated and where and by what the power was generated. Joyce on Insurance, sec. 497; Rissler v Insurance Co., 150 Mo. 336; Williams v. Insurance Co., 73 Mo.App. 607; May on Insurance, sec. 420; I W. L. & Z. Co. v. Insurance Co., 27 Mo.App. 446; Hale v. Insurance Co., 46 Mo.App. 511; Insurance Co. v. Coos Co., 151 U.S. 452; Aetna v. Strout, 44 N.E. 934; Cooley on Insurance, sec. 729; Cunningham v. Union C. & S. Co., 82 Mo.App. 607; Renn v. Sup. L. K. P., 83 Mo.App. 442; Norman v. Mut. Co., 74 Mo.App. 456.
Reed, Atwood, Yates, Mastin & Harvey for respondent.
(1) The court very properly sustained defendant's demurrer to the evidence. Village of L'Anse v. Fire Assn., 78 N.W. 465; Benton v. Insurance Co., 119 Mich. 281; Green v. Insurance Co., 91 Iowa 615; Assurance Co. v. Miller, 91 Texas 444; Bahr v. Insurance Co., 80 Hun. 309; Leaventhal v. Insurance Co., 32 Misc. 685; Insurance Co. v. Brannon, 81 S.W. 560. (2) It may be admitted that if the policy sued on was ambiguous, indefinite or in any wise uncertain as to the building in which the insured motor was situated, oral evidence upon proper pleadings and a proper case would be permissible to show what particular motor was meant. There is no shadow of ambiguity in this record in the policy sued on, and there is no room for parol evidence. 1 Clement on Fire Ins., p. 60, citing Fish Co. v. Insurance Co., 84 Minn. 419, 87 N.W. 932; Landers v. Cooper, 115 N.Y. 279; 1 Enc. of Evidence, p. 826.
This is a suit to recover on a fire insurance policy. The defendant recovered and plaintiff appealed. The defendant denies that the property, which was destroyed by fire, was included in the policy on which plaintiff seeks to recover. The property insured is described as follows:
"By this policy of insurance . . . does insure against all direct loss or damage by fire . . . the following property while located and contained as described herein, and not elsewhere, to-wit:
TWELVE THOUSAND, FIVE HUNDRED DOLLARS.
$ 3,000.
$ 2,500.
On engine and boilers and connections, and
$ 2,000.
On electric motor and connections, and
$ 5,000.
On other fixed and movable machinery, in-
cluding shafting, gearing, belting, pipes
and fittings, all while contained in the
above described quartz mill building."
This suit is to recover in the sum of $ 2,000 on account of loss by fire of an electric motor and its connections. The plaintiff sues as the assignee of the mining company to which the policy was issued. It was shown by the evidence that the engine and boiler room was situated about thirty feet from the mill building and connected therewith by a line shaft, and that there was an electric power house situated about twelve hundred and fifty feet distant from the mill building and connected with it by electric wiring, which was used to transmit power and light to the mill building and mines. It was this power plant and the electric motor and connections thereto that were destroyed by fire.
It is contended by defendant that as the motor destroyed was not contained in the quartz building, therefore, it was not covered by the policy.
The evidence tends to show that an application was made by what was known was the Richinbar Company for a policy of insurance on the property and that one was issued to it, but was afterwards canceled. The policy in suit was issued to the Kentucky Standard Mining Company, plaintiff's assignor. A witness by the name of Campbell, who was acting for the former company, stated that he had furnished the defendant's agent, Thomas, with a plan of the property including that in question, which it wanted insured. Upon motion of defendant, this evidence was stricken from the record. The witness stated, however, that he had no connection with the Kentucky Standard Mining Company.
The evidence showed that there was an electric motor in the building of 35-horsepower while the one in question was of 55-horsepower. As the policy did not describe the motor in suit, the plaintiff endeavored to show by the evidence of Campbell and also by the evidence of himself that defendant had knowledge that the latter was a part of its plant and that...
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