Pace v. American Central Ins. Company

• Decision Date: 28 July 1913
• Citation: 158 S.W. 892,173 Mo.App. 485
• Parties: G. E. PACE and CLARK DOOLEY, Respondents, v. AMERICAN CENTRAL INSURANCE COMPANY, Appellant
• Court: Missouri Court of Appeals

158 S.W. 892

173 Mo.App. 485

G. E. PACE and CLARK DOOLEY, Respondents, v. AMERICAN CENTRAL INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, Springfield

July 28, 1913

Appeal from Texas County Circuit Court.--Hon. L. B. Woodside, Judge.

Judgment affirmed.

Lamar Lamar & Lamar for appellant.

(1) The value of property destroyed is a material allegation of plaintiff's petition, without which the petition is bad on demurrer, and without proof of which value cannot recover. Story v. Ins. Co., 61 Mo.App. 535; Ramsey v Underwriters's Assn., 71 Mo.App. 381. (2) Defendant's peremptory instruction should have been given. There is not a syllable of evidence in this record showing the value of any of the goods covered by the policy destroyed by the fire. Ins. Co. v. Pard, 2 Ind. T 625, 53 S.W. 424. (3) While it is true, in insurance cases, the plaintiff may show a waiver under an allegation of performances, the burden is on him. Instruction No. I ignores this and tells the jury that the issuance of the policy, and the evidence of a fire entitles plaintiff to a verdict. This is error. Roberts v. Ins. Co., 94 Mo.App. 142; Ruthnuller v. Ins. Co., 38 Mo.App. 118. (4) The policy provides, "that defendant in case of loss may investigate, examine the assured, etc., and "this company shall not be held to have waived any privilege or conditions of the policy or any forfeiture thereof by any requirement, act or proceeding on its part relating to the appraisal, or to any examination herein provided for." This is a valid provision and is binding on the assured. 19 Cyc. 805e; Label v. Ins. Co., 28 S.W. 133; Wheaton v. Ins. Co., 76 Cal. 415, 9 Am. St. Rep. 229; Rountree D. G. Co. v. Ins. Co., 100 Mo.App. 513; Carey v. Ins. Co., 84 Wis. 80, 36 Am. St. Rep. 907; Drug Store v. Ins. Co., 44 S.W. 21. (5) The facts testified to by Clark Dooley, even if true, do not warrant a submission to the jury of the question of waiver and are insufficient to support a finding of waiver. Ostrander on Fire Ins. (2 Ed.), p. 761, sec. 366; p. 756, sec. 361; Richards on Ins. (2 Ed.), pp. 82, 83, secs. 82-83; 19 Cyc. 805, and cases cited; Rountree D. G. Co. v. Ins. Co., 100 Mo.App. 504; Curlee v. Ins. Co., 73 S.W. 831; Burnham v. Ins. Co., 75 Mo.App. 394; Leigh v. Ins. Co., 37 Mo.App. 542; Steiffel v. Ins. Co., 55 Mo.App. 224; Colonius v. Ins. Co., 3 Mo.App. 56; Card v. Ins. Co., 4 Mo.App. 424; Crigler v. Ins. Co., 49 Mo.App. 11; Label v. Ins. Co., 28 S.W. 133; Ins. Co. v. Flourney, 65 Ark. 54, 67 Am. St. 900. (6) Even if the testimony authorized the submission of a waiver to the jury, instruction No. 2 for plaintiff is wrong and prejudicial. Whether or not the company waived a compliance with the iron-safe clause of the policy, and with its other provisions, was a fact to be passed on by the jury just like any other fact. It was a clear invasion of the province of the jury for the court to say, "that these facts in and of themselves constituted a waiver." Ostrander on Fire Ins. (2 Ed.), 338, sec. 349; Summers v. Ins. Co., 45 Mo.App. 53; McCullum v. Ins. Co., 61 Mo.App. 356; Bowan v. Ins. Co., 69 Mo.App. 272; Partee v. Ins. Co., 62 Mo.App. 526; McMahan v. Maccabees, 151 Mo. Co., 62 Mo.App. 526; McMahan v. Maccabees, 151 Mo. 534; Rountree D. G. Co. v. Ins. Co., 100 Mo.App. 504; Gale v. Ins. Co., 33 Mo.App. 664; Noonan v. Ins. Co., 21 Mo. 90; Okey v. Insurance Co. 29 Mo.App. 105; Steipel v. Loan Assn., 55 Mo.App. 233. (7) Instruction 4 for the plaintiff directed the jury to consider the verbal statements of the plaintiff Pace with care and caution, and was reversible error. 38 Cyc. 1649 a. n. 32-45; Peck v. Ricky, 66 Mo. 121; Coffman v. Maeir, 18 L. R. A. (Cal.) 410; Lewis v. Christie, 99 Ind. 397; Zeno v. Johnson, 107 Ind. 69; Wichersham v. Beers, 20 Ill.App. 243. (8) The court should have granted defendant a new trial on the ground of surprise, because of the testimony of Clark Dooley, as to a waiver. McCullough v. Ins. Co., 113 Mo. 616; McCullon v. Ins. Co., 61 Mo. 352. (9) After defendant specifically set up various breaches of the conditions of the policy in its answer, plaintiff's reply was not a waiver but a general denial. No issue of waiver is tendered in an insurance case, by a reply consisting only of a general denial. R. R. 1909, secs. 1811-1830-1950-1951-1952-1953; 19 Cyc. p. 930, n. 92, cases cited therein; Mueller v. Ins. Co., 45 Mo.App. 834; Hearsh v. Ins. Co., 130 Mo.App. 457; Ejrlick v. Ins. Co., 103 Mo. 231; Rudd v. Ins. Co., 120 Mo.App. 7.

Dooley & Hiett, W. E. Barton and W. P. Elmer for respondents.

(1) In plaintiffs' petition, it is alleged that the value of the property at the time of the fire was two thousand two hundred and seventy-eight dollars and eighty-seven cents; that all of this property was totally destroyed by the fire, and that plaintiffs' loss was two thousand two hundred and seventy-eight dollars and eighty-seven cents. (2) The court did not err in refusing defendant's peremptory instruction. If no value of the goods at the time of the fire and destroyed by the fire has been proven, then the error was invited by the appellant and it cannot be heard to complain nor permitted to profit by it. R. S. 1909, sec. 1830; Garst v. Good, 50 Mo.App. 149; 2 Ency. Plead. & Prac. 522, note 4; Railroad v. Elliott, 102 F. 96; Hahl v. Brooks, 72 N.E. 727; Knudsen v. Parker, 96 N.W. 1010; Fogarty v. Bogart, 60 N. Y. S., 81; Williams v. Meyers, 64 S.W. 66; State ex rel. v. Henderson, 86 Mo.App. 482; Hotel Co. v. Sauer, 65 Mo. 279. (3) The failure of the trial court to instruct the jury in regard to the burden of proof amounts to nondirection when no such instruction was asked, and therefore does not constitute error. Hunter v. McElhaney, 48 Mo.App. 234; Bank v. Ragsdale, 171 Mo. 168; Moore v. Railroad, 136 Mo.App. 210; Distler v. Railroad, 163 Mo.App. 674; Berger v. Storage Co., 136 Mo.App. 36 (4) If the insurer, with the knowledge that a cause for forfeiture exists, so conducts itself toward the insured that the latter is justified in believing the right of forfeiture will not be invoked and is led thereby into the expenditure of time or money in presenting his demand to the insurer, a waiver will be presumed. Meyers v. Casualty Co., 123 Mo.App. 682; Ramsey v. Ins. Co., 160 Mo.App. 236; Bolan v. Ins. Co., 58 Mo.App. 225; Bowen v. Ins. Co., 69 Mo.App. 272; McCullum v. Ins. Co., 61 Mo.App. 352. (5) The testimony shows that the adjuster of the defendant company told the plaintiffs to get the original bills, duplicate bills and bank statements and make the proof of loss and send it in; that plaintiffs incurred the expense and trouble to do this and sent the proof of loss thus made to the defendant company. This testimony was sufficient to submit the question of waiver to the jury. (6) The appellants contend that the question of waiver is always one of intent; this is the general rule, but it has its exceptions. In this case the agent and adjuster of the company with knowledge that the books of the plaintiffs had been burned requested the plaintiffs to get their bills, duplicate bills, invoices, etc., and send them to the company. The plaintiffs complied with this request and were thereby put to trouble and expense and the company thereby waived the iron-safe clause regardless of its intention. Burgess v. Ins. Co., 114 Mo.App. 169; Bowen v. Ins. Co., 69 Mo.App. 272. (7) The court did not err in giving such instruction. The court had the right under the testimony in this case to caution the jury as to the evidence of verbal statements of plaintiff made before trial and testified to by witnesses other than plaintiff, and to give his reason for such caution. Connor v. Railroad, 181 Mo. 397; 1 Greenleaf on Evidence, par. 200, p. 276; Allen v. Kirk, 81 Iowa 658; Martin v. Algona, 40 Ia. 392; Stewart v. DeLoach, 86 Ga. 729; Nash v. Hoxie, 59 Wis. 384, 18 N.W. 408; Dreher v. Fitchbern, 99 Am. Dec. 91; Tozer v. Hershey, 15 Minn. 257; State v. Hanna, 130 Mich. 195. (8) The court did not err in refusing appellants a new trial on the ground of surprise. There was no amended pleading in this case, nor anything else in the case to surprise it. Waiver can be proven under a general allegation of performance in the petition, although the replication be a general denial. Ins. Co. v. Kyle, 11 Mo. 278. (9) Evidence of a waiver where the reply is a general denial is admissible. Andrews v. Ins. Co., 168 Mo. 151; Thompson v. St. Charles Co., 227 Mo. 220; Martin v. Ins. Co., 158 Mo.App. 468; Burgess v. Ins. Co., 114 Mo.App. 169; Suess v. Ins. Co., 193 Mo. 564.

ROBERTSON, P. J. Sturgis, J., concurs. Farrington, J., not sitting.

OPINION

ROBERTSON, P. J.

On July 13, 1911, the defendant issued to the plaintiffs its policy insuring them against loss from fire for one year to an amount not exceeding $ 1500 on their stock of merchandise, located in Houston, Texas county, consisting principally of jewelry, optical goods, watch repairs, etc., and other merchandise usually kept for sale in a jewelry store, and on October 31, 1911, a fire occurred which destroyed the entire stock of goods then in the building. About ten days or two weeks after the fire the adjuster for the defendant appeared at Houston. Previous to his arrival it had been rumored that Mr. Pace, one of the plaintiffs, had burned the stock. Up to that time no proofs of loss had been made out and the plaintiffs' books and some of their invoices had been destroyed in the fire, except it was claimed that the ledger was at the home of the plaintiff Pace.

The local agents for the defendant company and the adjuster submitted to the plaintiffs a nonwaiver agreement, reading as follows:

"It is hereby mutually understood and agreed by and between (G. E.) Pace and (Clark) Dooley, doing business under the firm name of Pace and Dooley, p...