Miller v. Great American Ins. Co.

• Decision Date: 26 June 1933
• Docket Number: No. 22444.,22444.
• Citation: 61 S.W.2d 205
• Parties: MILLER v. GREAT AMERICAN INS. CO. OF NEW YORK.
• Court: Missouri Court of Appeals

61 S.W.2d 205

MILLER v. GREAT AMERICAN INS. CO. OF NEW YORK.

No. 22444.

St. Louis Court of Appeals. Missouri.

June 26, 1933.

Rehearing Denied July 3, 1933.

Appeal from Circuit Court, Audrain County; W. C. Hughes, Judge.

"Not to be published in State Reports."

Action by Sam Miller against the Great American Insurance Company of New York. Judgment for plaintiff, and defendant appeals.

Judgment reversed, and cause remanded.

Clarence A. Barnes, of Mexico, Bennett Champ Clark, of St. Louis, Thomas & Thomas, of Carrollton, and Carl L. Ristine, of Lexington, for appellant.

Rodgers & Buffington, of Mexico, Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, Crossan & Hall, of Kansas City, and Lavelock, Kirkpatrick, Clark & Garner, of Richmond, for respondent.

BENNICK, Commissioner.

This is an action by plaintiff, the insured, upon a policy of fire insurance, concededly issued by defendant and outstanding at the time of the loss. There was concurrent insurance on the property in the aggregate amount of $16,000, the policy in suit being for $2,500, and containing the usual clause that the company should not be liable for a greater proportion of any loss than the amount of the policy should bear to the whole of the insurance.

The sufficiency of the pleadings is not in issue on this appeal, and it will suffice to say that the petition was in an approved form for a case of this character, and that the answer charged a violation by plaintiff of numerous of the conditions of the policy, together with the fact that whatever damage was sustained was caused by or with the knowledge of plaintiff.

Upon a trial to a jury, a verdict was returned in favor of plaintiff, assessing his recovery on the policy at the sum of $1,600. The jury further found that defendant's failure to pay had been vexatious, though nothing was allowed by way of a penalty except an attorney's fee in the sum of $125. Judgment was rendered accordingly; and following the refusal of its motion for a new trial, defendant has duly appealed.

The property insured consisted of a stock of general merchandise, located in plaintiff's store in Richmond, Mo. Plaintiff had owned the store since September 1, 1929, when he purchased it from one H. S. Wall for $15,500. Thereafter he increased the size of the stock from time to time, and at the time of the fire, on August 25, 1931, the store was filled to capacity on account of the purchase of a large quantity of new goods in preparation for a sale which was shortly to be conducted. The value of the stock at the time of the fire, as fixed in the proofs of loss, and as shown by other evidence, was in excess of $21,000. Plaintiff testified that he had realized some $3,000 from the part of the stock salvaged, and that there was about seven or eight hundred dollars worth of merchandise left on hand.

Plaintiff himself spent his time in his store in the city of Lexington, where he resided, while his Richmond store was left in charge of his brother, Abe Miller, and two or three other clerks, among whom was Sam Klevatt.

On August 25, 1931, at the usual closing time of 6 in the evening, every one had left the store except Abe Miller and Klevatt, who were waiting on two customers. After the sale was completed, the four went out of the front door together, the door was locked, and the parties separated; the customers going to their homes, while Miller and Klevatt got into the delivery truck and drove to plaintiff's other store in Lexington, which was always kept open pending their return. Shortly after their arrival in Lexington, they were informed over the telephone of the fire in the Richmond store, whereupon they at once returned to Richmond, accompanied by plaintiff, and arrived while the fire was still burning.

On September 8, 1931, proof of loss was made by plaintiff on blanks furnished by defendant, and on the following day plaintiff was examined under oath, the scope of the examination taking in the origin of the fire, the size of the stock, plaintiff's interest in the property, his keeping of inventories, books, and records, and his previous general business experience.

On or about February 1, 1932, defendant tendered back the premium to plaintiff's attorneys, the same being refused, and in connection therewith denied all liability under the policy upon the grounds of false statements by plaintiff as to the ownership of the property and the amount of loss, the failure of plaintiff to have complied with the inventory clause, and that he himself had been responsible for the fire. On May 4, 1932, the present action was instituted.

The first insistence of defendant is that the court erred in permitting plaintiff and his witnesses, Wall, Swofford, Stewart, and Burton, to give opinion evidence of the value of plaintiff's stock of merchandise without having shown themselves to be qualified or possessed with sufficient facts or information upon which to base any competent opinion. Wall, it will be recalled, was the one from whom plaintiff had purchased the store. He was a man of thirty years' experience in the buying of mercantile stocks and the holding of special sales. After selling the stock to plaintiff, he was in the store quite frequently, and he last visited it four days before the fire, when he casually looked it over as to quantity and value. Swofford was a traveling salesman for a dry goods house, and had had experience in invoicing stocks of merchandise and the preparation of inventories. He had called at plaintiff's store at regular intervals, and was last in it three weeks before the fire. Stewart, a shoe salesman, had had much the same experience, while Burton had been a clerk in plaintiff's store and was last in it on the day of the fire.

We think that all such testimony was properly admitted. The experiences of the witnesses with the mercantile business was fully shown, along with their several opportunities for having familiarized themselves with the extent and value of plaintiff's stock of goods. In other words, it was for the jury to weigh their testimony and determine its worth in the light of its reasonableness when tested by the facts in evidence and measured by the experience, observation, and means of knowledge of the witnesses. Vortriede v. St. Louis Public Service Co. (Mo. App.) 58 S.W.(2d) 492. The court did not err in overruling the objections which were interposed, the real issue being one of the weight to be accorded the testimony, and not the question of its competency. Seyfarth v. St. Louis & I. M. R. Co., 52 Mo. 449; Bowne v. Hartford Fire Insurance Co., 46 Mo. App. 473; N. O. Nelson Mfg. Co. v. Shreve, 104 Mo. App. 474, 79 S. W. 488.

But defendant makes another point which goes more directly to the question of the competency of such testimony, though it, too, is devoid of merit. This point is that the testimony of the witnesses as to the value of the goods was secondary and inadmissible over its objection; the books, records, and invoices in the possession of plaintiff being the best evidence. Actually the point made in a sense disproves itself; counsel conceding that such books, records, and invoices as were in existence did not cover the entire stock of goods. The question being the value of the entire stock, there could well be no best evidence of such value unless it went to the entire subject in inquiry. But plaintiff was not attempting to prove the contents of his books, records, and invoices by oral evidence; rather he was attempting to prove the value of his stock of goods at the time of the fire. To the extent that his books, records, and invoices might have disclosed such value, he would have had two means of proof, one by his documentary evidence, and the other by his parol evidence. However, the fact that his documentary evidence would have been competent, if offered, did not thereby render his parol evidence of the same fact incompetent; and therefore the objection that the testimony of the witnesses was not the best evidence of the fact to be proved is not well taken. Rissler v. American Central Insurance Co., 150 Mo. 366, 51 S. W. 755; W. D. Schmidt & Co. v. Lightner, 185 Mo. App. 546, 172 S. W. 483.

The next point, which is relied upon as being quite an important one, is that the court erred in refusing to permit defendant to show the unnatural origin of the fire by the testimony of its expert witnesses, and particularly by its witnesses Urbanski and Jackson. The former was the fire chief at St. Joseph, and the latter at Liberty, both of which cities are in the general vicinity of Richmond; and both men had had many years' experience in fighting fires and in studying their cause and effect. Urbanski had made an inspection of the premises ten days after the fire, and Jackson shortly after it.

The substance of the offer of proof in each instance was that the fire, in the opinion of the witness, was of incendiary origin, attributable to the use of paint remover or other inflammable substance, in view of the fact that there was nothing to indicate the point of origin and the spread of the fire; that it had burned throughout the whole building simultaneously; that the burning was superficial; and that certain of the goods gave evidence of white streaks upon their surfaces as though some inflammable substance had been poured upon them.

We think the offers of proof were properly rejected. As a matter of fact, it was really not so much expert evidence as opinion evidence which was called for, inasmuch as the witnesses were asked to state their conclusions, in large part at least, from the facts which they themselves had observed. However, the theory was that the opinions of the witnesses, if otherwise admissible,...