Oehler v. Phoenix Insurance Company, of Hartford, Connecticut
| Decision Date | 30 September 1911 |
| Parties | V. E. OEHLER, Trustee, Respondent, v. PHOENIX INSURANCE COMPANY, of Hartford, Connecticut, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Lincoln Circuit Court.--Hon. James D. Barnett, Judge.
Judgment affirmed.
O'Neill Ryan and R. L. Sutton for appellant; Ryan & Thompson of counsel.
The court erred in giving instruction numbered one asked by plaintiff because: (a) It was vague, misleading and confusing. Sapp v. Hunter, 134 Mo.App. 685; Harrison v. Franklin, 126 Mo.App. 366; Trustees etc., v. Hoffman, 95 Mo.App. 488. (b) It singled out one defense, to-wit, the failure to keep proper books and inventory under the "iron safe" clause, and directed the jury that if they found certain facts therein set forth that then the jury, upon that issue, might find for plaintiff, ignoring the other--the fraud--defense. Rudd v. Fire Ins. Co., 120 Mo.App. 1; Imboden v. Trust Co., 111 Mo.App. 220; Ormsby v. Ins. Co., 98 Mo.App. 371; Swink v. Anthony, 96 Mo.App. 420; Holladay, etc., Co. v. Moss Tie Co., 87 Mo.App. 167. (c) It singled out certain facts and told the jury that if they found these facts the company waived its right to forfeit the policy "for those reasons." James v. Insurance Co., 135 Mo.App. 247; Landrum v Railroad, 132 Mo.App. 717; Gage v. Mears, 107 Mo.App. 140. (d) It was in substance an instruction to the jury that if they found against defendant on one of the defenses interposed they could return a verdict for plaintiff, ignoring other defenses made and supported by proof. Authorities, supra, (b). (e) It was argumentative and a comment on evidence. Smith v. Woodmen, 179 Mo 119; James v. Insurance Co., 135 Mo.App. 247; Ford v. Gray, 131 Mo.App. 240; Gage v. Mears, 107 Mo.App. 140; Swink v. Anthony, 96 Mo.App. 420. (f) It assumed a strongly contradicted fact, namely, that Caraway, at Dallas, "went over the facts of his loss" with Slaton. Crow v. Railroad, 212 Mo. 589; Railroad v. Stewart, 201 Mo. 491. (g) It squarely conflicted with defendant's instruction No. 5.
R. H. Norton, Avery, Dudley, Young & Killiam, Barclay, Fauntleroy & Cullen for respondent.
(1) Respondent's instruction No. 1 is not subject to the objection that it leaves out of consideration the defense of fraud as it is limited to one issue, waiver of books and inventory. And defendant's instructions set forth its defense just as requested by it. All the facts and issues proper to be submitted need not be combined in one instruction. They may be included in a series of instructions. It is sufficient if the instructions, as a whole, present the issues fairly to the jury. Minter v. Bradstreet Co., 174 Mo. 444; Russell v. State Ins. Co., 55 Mo. 585; Fullerton v. Railroad, 84 Mo.App. 498; Muehlhausen v. Railroad, 91 Mo. 332; Sackewitz v. Am. Biscuit Mfg. Co., 78 Mo.App. 144; Fletcher v. Mfg. Co., 35 Mo.App. 321. (2) Instructions may assume a fact conceded or established or about which there is or can be no reasonable controversy. "The rule is that the assumption in an instruction of an issuable fact conceded by the other party is not erroneous." Sweeney v. Cable Ry. Co., 150 Mo. 385; Taylor v. Architectural Iron Co., 133 Mo. 349. (3) The answer of defendant does not plead the defenses of fraud or false swearing sought to be invoked by defendant, because no facts showing fraud, or falsity, are set forth, hence these issues are not in this case. A mere charge of fraud, or falsity, without specification how and without particulars, of the alleged false acts, amounts to nothing in pleading. Newman v. Trust Co., 189 Mo. 444; Barrie v. Railroad, 138 Mo.App. 645.
This is a suit on a policy of fire insurance. Plaintiff recovered and defendant prosecutes the appeal. The policy sued upon is in the amount of $ 2000 on a stock of general merchandise owned by the insured, M. B. Caraway, and $ 350 on a frame store building in which he owned a one-half interest. The building and stock were situate at Brookeland in Texas, where Caraway conducted a general store, and were totally consumed by fire. Besides the policy in suit, Caraway carried other insurance on the stock to the extent of $ 3000, or a total insurance on merchandise of $ 5000. At the time of the fire, the insured was indebted to a number of wholesale houses and others and therefore assigned this and other policies to plaintiff as trustee for his creditors, and the suit is prosecuted by plaintiff as such trustee for the benefit of the creditors of the insured, Caraway.
Though it is set forth in several different forms in the answer, the defense relied upon is, in substance, that the insured, Caraway, conspiring and co-operating with one Burton to defraud the insurance companies, removed the greater portion of the stock of merchandise from his store at Brookeland to that of Burton, at Carthage, prior to the fire; but the jury found the fact to the contrary.
A few days after the fire occurred, one Slaton, adjuster for defendant and all other companies interested, went to Brookeland and devoted a portion of two days to investigating the loss, but did not settle it for the reason that Caraway, the insured, was absent from home. The adjuster notified Caraway to produce his books, papers, etc., and meet him at a later date at Dallas with a view to a settlement for all of the companies. In obedience to this request, Caraway, in company with Burton, a merchant of Carthage, subsequently charged as his co-conspirator, repaired to Dallas and went over the matter of the fire and the extent of the loss with Slaton, the adjuster, in his office. At this meeting, Caraway produced his books, bills and invoices and after the adjuster had devoted several hours to looking through the same, he submitted a proposition to the effect that the companies, including defendant, would pay the full amount of the several policies on merchandise, provided Caraway would surrender his claim against the present defendant for the $ 350 insurance on the building. It appeared that Caraway owned only one-half interest in the building and this fact had not been communicated to the company when the policy was issued. Defendant's policy stipulated that unless the insured was the sole and unconditional owner, the item of insurance should be void. Caraway took this proposition under advisement and returned home. A few days later, Burton wrote the adjuster that Caraway had learned he could not collect the $ 350 on the building and had therefore concluded to forego the same and accept the proposition so made on behalf of all of the companies for payment of the full amount insured on merchandise. The adjuster's proposition having been thus accepted, he prepared proofs of loss for defendant and the other companies and mailed them to Burton for execution by Caraway. Caraway executed the several proofs of loss and mailed them to the adjuster, who transmitted them to the companies and wrote Caraway that the amounts would be paid by the companies promptly at the expiration of sixty days in accord with the time specified in the policies. Defendant and all other companies retained the proofs so made, but at the expiration of sixty days declined to pay the loss for the reason, it is said, they had subsequently procured information to the effect that Caraway and Burton had confederated and conspired to defraud them by removing the goods from Caraway's store at Brookeland to that of Burton at Carthage, prior to the fire. In the meantime, the policy in suit had been assigned to plaintiff as trustee for the creditors of Caraway and upon defendant's refusal to pay it this suit was instituted thereon.
At the trial, the facts above stated were shown, and defendant's liability, except for the fraud set forth in the answer, was either proved or admitted, while it was admitted by plaintiff that defendant had duly tendered a return of the premium paid on the policy. To sustain its several affirmative defenses defendant introduced evidence tending to prove that Caraway was a young man without means who had opened a store at Brookeland in August before the fire, which occurred on October 19, 1906, and that Burton had aided him to purchase goods by recommending him to the wholesale houses, etc. It seems that Caraway and Burton were old friends, related by marriage and had been intimate for many years. Burton was the elder and formerly had been associated with Caraway's father in business. Caraway had started a store at a small town in Texas not long before his venture at Brookeland, and upon it appearing that he could not succeed, closed it and invoiced something over $ 2500 of his stock to Burton, who placed it in his store, under an agreement that when Caraway opened a new store, he would invoice a similar amount of like goods to him from the stock then on hand. For a few months after this, Caraway clerked for Burton at Carthage and in August, 1906, opened his store at Brookeland. In this new store, Caraway accumulated a stock of merchandise said to be worth about $ 9000. Something over $ 2500 of this was invoiced to him by Burton from his store, in lieu of that which Caraway had delivered to Burton the year before, and the remainder was purchased from wholesale houses on credit, through Burton's recommending Caraway to them. Caraway sold a little over $ 500 worth of goods after opening his store at Brookeland in August and before it was consumed by fire during the night of October 19th. There was no attempt to show by direct proof that Caraway intentionally communicated fire to his store, but the evidence suggests that he was careless of a fire in a stove, which he had lighted for the purpose of heating water, to the end of taking a...
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