Newmark v. Liverpool & London Fire & Life Ins. Co.

• Citation: 30 Mo. 160
• Parties: NEWMARK, Appellant, v. THE LIVERPOOL AND LONDON FIRE AND LIFE INSURANCE COMPANY, Respondent.
• Decision Date: 31 March 1860
• Court: United States State Supreme Court of Missouri

30 Mo. 160

NEWMARK, Appellant,

v.THE LIVERPOOL AND LONDON FIRE AND LIFE INSURANCE COMPANY, Respondent.

Supreme Court of Missouri.

March Term, 1860.

1. The liability of an insurance company for losses by thefts occurring at the time of a fire is not restricted to such losses occurring during the continuance of the fire merely; if the loss by theft be occasioned directly by the fire, the insurer will be liable though it happen after the extinguishment of the fire.

2. The affidavits and accounts of loss constituting the preliminary proofs furnished by the insured to the insurance company are evidence that the insured has complied with the stipulations of the policy in this respect; they are not evidence in favor of the insured as to the amount of the loss.

3. The admissibility of the testimony of skilled witnesses is, as a general rule, confined to a case where, from the nature of the subject, facts disconnected from such opinions can not be so presented to the jury as to enable them to pass upon the question with the requisite knowledge and judgment.

Appeal from St. Louis Court of Common Pleas.

This was an action by Abraham Newmark against the Liverpool and London Fire and Life Insurance Company to recover for a loss by fire on his stock of goods covered by a policy, issued by the said company, for five thousand dollars. There was another policy issued by the Citizens' Insurance Company on the same goods. The plaintiff claimed that his whole loss amounted to nine thousand and eighty-one dollars and forty-two cents, one-half of which, with interest, he claimed to recover of defendant. At the trial the plaintiff adduced proofs to show the amount of his loss. The opinions of certain witnesses with respect to the capacity of the store of plaintiff were admitted in evidence in behalf of defendant. The character of this testimony is sufficiently set forth below in the opinion of the court.

The court, at the instance of the plaintiff, gave the following instructions: 1. If the jury believe from the evidence that only a portion of the goods mentioned in the plaintiff's petition was consumed by fire and damaged by water, but that the balance of said goods so alleged to be lost was, on account of the fire, stolen from said store so as to be lost to the plaintiff, then the same is covered by the policy of insurance of the defendant read in evidence, and the jury ought so to find. 2. The plaintiff is entitled in this action to recover for all the property burnt or damaged by either fire or water used at the time of the fire to extinguish it, as well as for such property as was stolen from the store of the plaintiff on the corner of Main and Locust streets at the time of the fire and caused or occasioned by the said fire, and which was not afterwards recovered by said plaintiff. 3. If the jury shall believe from the evidence that any witness in the cause has wilfully sworn falsely to any material fact in the case, they have a right to disregard all the testimony of said witness not corroborated by other truthful testimony. It is however the province of the jury to judge of the weight and credibility of each witness in the case.”

The court, at the instance of the defendant, gave the following instructions: “1. The jury are instructed that it is their duty to ascertain from the evidence in the cause the amount of the plaintiff's loss and damage by the fire, and the recovery of plaintiff is limited to the one-half of the whole amount of loss or damage. 2. In ascertaining the amount of the plaintiff's loss or damage the jury are to consider and weigh all the facts and circumstances in the case, and to find their own verdict for the amount they believe from the evidence the plaintiff actually lost by the fire. 3. The plaintiff is entitled to recover for goods that were lost at the time of the fire, but not for any goods that were stolen before the fire, or that may have been stolen after the fire happened and was extinguished. 4. If the jury find from the evidence that in the plaintiff's account of loss furnished to the defendant he knowingly claimed and made affidavit that he sustained a larger amount of loss than he really and in truth sustained by the fire, with intent to defraud the defendant, then the plaintiff is guilty of fraud and false declaration, and can not recover any thing in this action. 5. The books of account of the plaintiff, produced in this cause, are not evidence before the jury, unless the same are proved by the parties making the entries therein or some person who examined or knew the same at the time of being made to be correct and true, and the entries made by the plaintiff himself can not be evidence in his favor except so far as they are shown by other evidence to be correct. 6. The affidavits and accounts constituting the preliminary proofs of plaintiff to defendant, produced in this cause, are not evidence of plaintiff's loss, nor of any thing in them contained except the fact that said proofs were made by the plaintiff for the defendant. 7. The jury is instructed that the proceeds of the damaged goods sold at auction belong to the plaintiff and not to the under-writers.”

The jury found for plaintiff and assessed his damages at one thousand one hundred and sixteen dollars.

H. N. Hart, for appellant.

I. The third instruction given for defendant was erroneous and calculated to mislead. If the loss were directly traceable to the fire, the insurer is liable. (1 Phill. on Ins. § 624, 1107; 3 Penn. 471; 1 Sto. 157; 1 Holt, 149; 14 Mo. 3; 13 Ill. 676; Amer. Law Reg. 149.) There was no evidence whatever as to thefts before the fire broke out. Instructions should not be mere abstract propositions of law. (26 Mo. 393, 394; 4 Mo. 106; 8 Mo. 224; 21 Mo. 405; 25 Mo. 335; 27 Mo. 26.) The fourth instruction was erroneous. Fraud was not alleged in the answer. The fifth instruction was erroneous. The books of account were proven. Whether so proven as to go to the jury was for the court to determine. It was irregular to submit the question to the jury whether they were evidence or not. So the sixth instruction was erroneous. (2 Phill. on Ins. 643; Moore v. Protection Ins. Co. 29 Maine, 97.) Only one objection, purely formal, was offered to the admission of the preliminary proofs. (13 Ill. 676.) The evidence was before the jury. (21 Mo. 256.) The opinions of witnesses as to the amount of plaintiff's stock, as experts, were improperly admitted. The amount of plaintiff's loss, or the quantity and value of the stock in plaintiff's store at or before the fire, was not susceptible of proof by experts. No witness should have been allowed to testify who had no knowledge of the character and quantity of plaintiff's stock. (2 Tayl. Ev. 943; 1 Greenl. Ev. 440; 6 N. H. 463; 9 Cush. 337; 17 Wend. 163; 2 Conn. 514; 13 Conn. 81; 7 Conn. 72; 7 Cush. 319; 7 Wend., 78; 1 Green, 232; 3 Denio, 355; 3 N. H. 349; 1 Wheel. Cr. C. 205; 7 Mo. 231; 4 Conn. 203; 6 Conn. 9; 2 Hamm. 61; 7 Verm. 161; 4 H. & McH. 63; 20 Pick. 259; 16 Ohio, 513; 5 W. & S. 333.)

B. A. Hill, for respondent.

I. The instruction given with respect to the preliminary...