Mueller v. Putnam Fire Ins. Co.

• Court: Missouri Supreme Court
• Writing for the Court: BLISS
• Citation: Mueller v. Putnam Fire Ins. Co., 45 Mo. 84 (Mo. 1869)
• Decision Date: 31 October 1869
• Parties: A. C. MUELLER et al., Respondents, v. THE PUTNAM FIRE INSURANCE COMPANY, Appellant.

45 Mo. 84

A. C. MUELLER et al., Respondents,

v.THE PUTNAM FIRE INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

Sharp & Broadhead, for appellant, cited 35 Mo. 453-7; 20 Barb. 468-73; 2 Comst., N. Y., 507; 4 Barb. 265-6, 270-3; Kelly v. Upton, 5 Duer, 336, 341-2; Garvey v. Fowler, 4 Sandf., N. Y., 665-7; Schultz v. Duprey, 3 Abb. Pr. 252-3; 6 Johns. 339; 2 Seld. 179, 188-9; 10 Wheat. 189; 1 Johns. Ch. 117; 1 Barb. Ch. 339; Camp's Adm'r v. Heelan, 43 Mo. 591; 10 Barb. 285; 12 Barb. 573; 7 Clarke, Iowa, 422; 8 Ind. 150; 11 Ind. 288; Ang. on Fire and Life Ins. 160, §§ 127-8, note 2; 2 Arnold on Ins. 772-3, § 287; 1 Phillips on Ins. 494, § 911; id. 589, § 1046; Chandler v. Worcester Mut. Fire Ins. Co., 3 Cush. 328; Citizens' Ins. Co. v. Marsh, 41 Penn. St. 386, 393-5; Cleaveland et al. v. Union Ins. Co., 8 Mass. 308, 320-2; Ray & Grauss v. United Ins. Co., 2 Johns. 180, 187.

Garesche & Mead, for respondents, cited Gates v. Madison County M. F. Ins. Co., 5 N. Y. 479, and cases cited; Columbian Ins. Co. v. Lawrence, 10 Pet. 518; St. John v. American F. Ins. Co., 4 Allen, 390; F. Ins. Co. v. Powell, 13 B. Monr. 319, and cases cited; Williams v. N. E. M. F. Ins. Co., 31 Maine, 227; Huckins v. People's F. Ins. Co., 31 N. H. 247; Merch. Mut. Ins. Co. v. Butler, 20 Md. 54; St. Louis Perpetual Ins. Co. v. Glasgow, Shaw & Larkin, 8 Mo. 720; Radde v. Ruckgate, 3 Duer, 685; Gilbert v. Ham, 12 How. 455; Bauer v. Wagner, 39 Mo. 387; Voorhies' Code, ed. 1864, p. 276, notes b., c., g.; Walton v. Walton, 17 Mo. 378; Robards v. Morrison, 20 Mo. 67; Thornton v. Rankin, 19 Mo. 193; Carpenter v. Myers, 32 Mo. 216; Mechanics' Bank v. Klein et al., 33 Mo. 560; 36 Mo. 470; Singleton v. Pacific R.R., 41 Mo. 469; Carpenter v. Myers, 32 Mo. 213.

BLISS, Judge, delivered the opinion of the court.

This was a suit upon a policy of insurance issued by defendant to the assignor of plaintiffs, containing among other things a condition that the insured, if requested, should exhibit to the insurer, upon the adjustment of the loss, his books of account, invoices, etc. The policy covered the contents of a flouring mill in Perry county, occupied and run by one Schaff, the insured, consisting of flour, grain, etc., and the following are among the issues made by the pleadings.

The petition, after its description of the contract of insurance, sets forth the loss, with averments, that it did not happen from any of the causes excepted in the policy; that said Schaff duly fulfilled all the conditions of said policy of insurance on his part, and gave the defendant due notice, and furnished proof of the fire and loss, etc. The answer denied the extent of the loss, and alleged that it was the result of the gross carelessness and negligence of the insured; denied the fulfillment of the conditions of the policy; denied proper notice and exhibition of the proofs, and, among other things, set up the provision of the policy that the insured, if required, should produce their books of account, etc., for examination, and averred that they “were expressly required by the defendant to produce to him their books of account, which they neglected and refused to do.” The reply put in issue all the defendant's allegations except the one concerning the requirement and neglect to produce the books of account, of which nothing was said.

The defendant claims that this omission admitted, by not traversing, the truth of the allegation, and that he should have judgment upon it; while the plaintiffs, on the other hand, insist that it was included in the general averment of performance of conditions precedent, and that defendant's allegation in regard to it was but a denial of the performance of that particular condition.

Is the obligation, then, to produce the books such a condition precedent as, under a system of pleadings that would require such conditions and their performance to be set out in detail, should be included in them? If included, it must be proved; and is the plaintiff called upon to make any proof in regard to it until the defendant has first set up and proved the demand for the books and their refusal? This is clearly a matter of defense. The defendant, in actions of this kind, may not desire to see the books; and if he so desires he will call for them, and, if dissatisfied with their non-production, he will set it up as a defense. Until then the plaintiff has nothing to do with the question; he only avers the performance of the conditions he is called upon to prove, and is not bound, nor will he be permitted, to anticipate and disprove the defense. This condition is not, then, included in the general allegation of performance, and can only be brought into the record by the defendant; and if he does not tender an issue upon it, it is outside of the case. Defendant having alleged the demand and refusal or neglect, the plaintiffs clearly should deny one or the other, or give some excuse for not complying with the demand. I can conceive of no other way in which the facts of the case can be put in issue. The matter involved in that issue is very important in developing the actual loss, and should be fairly met both by the pleadings and evidence.

In the trial below, against the protest of defendant, evidence was offered and instructions were given to the jury upon the verbal claim that plaintiffs were excused from the production of their books when demanded; that the defendant had waived their production. The record shows no denial of defendant's answer in regard to the books, and least of all is any waiver set up. All this evidence and this instruction were outside the record, and were clearly erroneous.

The plaintiffs claim that this allegation in regard to the books was not new matter, not matter of confession and avoidance. But the answer certainly admits the insurance and loss, and claims a non-liability in consequence...