Phillips v. Prot. Ins. Co.

• Decision Date: 31 March 1851
• Parties: PHILLIPS v. PROTECTION INSURANCE COMPANY.
• Court: Missouri Supreme Court

14 Mo. 220

PHILLIPS

v.PROTECTION INSURANCE COMPANY.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

This was a suit on a policy of insurance against the defendant, a foreign corporation, doing business in St. Louis by an agency, according to our statutes. The policy, dated 10th February, 1849, was on plaintiff's stock in trade (being military goods, music and musical instruments) in a store on Market street, just below Second, on the south side of Market street. The building was consumed in the great fire of the night of 17th May, 1849, and with it the greater portion of plaintiff's goods. A portion of them were saved by plaintiff and his friends, who were busily engaged, till the building was on fire, and until the city authorities blew it up with powder to prevent the extension of the conflagration. The goods saved were carried out hastily, and deposited in different places--some in an adjoining alley--and as soon after the fire as possible they were carried to a room on Fourth street, rented temporarily, where they were inventoried, and their cost at eastern prices affixed, taken from invoices. This inventory was completed by the 25th May. On the 9th June, 1849, a bundle of papers, comprehending the inventory of goods, a statement of the amount of stock at invoice prices, at the time when the last account of stock was taken, being about eighteen months previous, when the stock on hand was over $18,000--a statement of amount of intermediate sales and purchases, with affidavits and certificates sustaining them, the whole concluding with an affidavit of plaintiff, signed by him, setting forth that the amount of goods is correct; that no other insurance existed; that the value of his stock on hand at the time of the fire amounted to $16,500; that it belonged to him exclusively, and that the building in which it was, was exclusively occupied by him as a store, &c., for his said business; and that the fire originated on a boat in the harbor, and thence communicated to the town, &c. On the filing these papers, which had been delayed by the absence of ___ Murray (former clerk of plaintiff), in the country--whose assistance was necessary from his personal knowledge of the value of the stock when the account of it was last taken--the agent of defendant told plaintiff the claim would be attended to as soon as it should be arrived at in order, the office being crowded with business at that time. From that time till about the 1st of August, the cholera was epidemic in St. Louis, and on the 4th of June, a child of plaintiff was attacked with it, and was dangerous several days, and still did not recover, and his medical adviser directed him to take it to the east, to the sea-coast, for its health. His wife also was ailing. About a week after the fire, John Howard, the general agent of the defendant, arrived at St. Louis, and soon after took charge of this claim, and for some time had repeated interviews with the plaintiff, both at the defendant's office and at the plaintiff's counting-room, and he examined the books and papers of plaintiff, and was daily occupied in this way for some time, and reported to the other agents, Conden and Farles. After this examination, and after the papers had been delivered to them as just stated, the agents offered a certain sum to plaintiff, but less than the amount claimed by him, which he refused to receive. They then, on the 19th June, served a written notice on the plaintiff, requiring him to submit to a personal examination on oath. This notice was served on him at his store on Fourth street, to which he had removed from the room first occupied after the fire, and at a moment when he was on the way with his family to the boat, for the east--the carriage standing at the door with the sick child in it. The boat left at 5 P. M., on the 19th of June, with plaintiff and his family on board. The plaintiff returned on or about the 20th of September from the east, and went on that day to defendant's office, and notified the agents of his return, and his readiness to submit to the required examination. They appointed the next day for his attendance there. On the next day he attended, and the agents there read him a written notice, declining the examination, and utterly refusing to pay the claim, and denouncing it as fraudulent.

The plaintiff made out a supplementary statement, signed and swore to it, and filed it in defendant's office on the 21st September, 1849. It was taken to the office by plaintiff's counsel, and left there by him, on the desk of the agent of defendant there present, who remarked to him, that Gamble & Bates were their lawyers, and they would give plaintiff a good fight; and they utterly refused to pay the claim. On the 29th October, certificates were got from Mann Butler and Fdk. Kretchmar, the two nearest justices of the peace to the place of the fire; that is, nearest to the ruins of the plaintiff's said store. The substance of those certificates being substantially as required by the terms of the policy. These were left with the agents of the defendant on the 30th October, 1849. This suit was brought on the 3rd November thereafter. Previous to the bringing this suit, application was made to the agents of defendant by plaintiff and his counsel, for a sight of the said papers, filed with them by plaintiff, and they refused to show them or to give copies of them; and it was not until two orders of a judge were procured requiring the furnishing copies, or permitting them to be taken, that the plaintiff's counsel were enabled to see said preliminary proof for the purpose of briging this suit. It appeared in evidence that at the time of the fire, a Mr. Coste, a gentleman who had never been naturalized, held a commission as notary public, and his place of business was in the second story of the building on the corner of Second and Market streets, and nearer to the plaintiff's store that was burnt than either Butler or Kretchmar; but that he was not generally known as a notary. Several men of business from that immediate neighborhood testified that they had no knowledge that there was such a notary there at the time of the fire. He executed his bond and commenced business as notary about the first of September, 1848, and supposed that his bond was filed in St. Louis, and had no knowledge of its having been sent to Jefferson City. A mass of testimony was given and appeared on the record as to the fie, its progress, and destruction of all that part of the city to the northeast of plaintiff's store, till it reached that spot, and as to the efforts to remove his goods, and as to the amount of stock then on hand. It was proved that his books and papers were kept in a desk in a small room in the second story, where the book-keeper generally wrote, except such as from time to time by him were taken below for immediate use, and that that desk and contents were consumed; and that since the fire, the cash-book had never been seen, in which were entered a great portion of the sales, the amount of which was upwards of $1,800. The credit sales only were entered in the journal which was saved. The books that were saved happened at the time of the fire to be in the store, which was in the lower story. The building was of brick, two stories and an attic, in all of which were goods of the plaintiff; but the lower room only was used as a place of business and of sales, where the merchandise was exposed for the purpose of sale.

Previous to the date of the policy sued on, the plaintiff had been insured by defendant for many years. A policy had been executed on his stock in 1844 for the sum of $6,600. This had been yearly renewed, and the sum increased, and the last renewal was for the sum of $10,000, which continued in force down to February, 1849, when the policy in suit was executed on the same stock. The plaintiff offered this policy and its renewals in evidence twice. The first time at the commencement of the trial, and again at the close of the oral testimony, having proved its execution and the execution of the renewals, but the court excluded the same as irrelevant, to which decision of the court the plaintiff excepted.

The plaintiff having closed his case, the defendant asked the following instruction, which the court gave, viz: “The jury is instructed that the plaintiff has failed to show a compliance with the conditions of the policy of insurance in this case, and has failed to show a waiver of those conditions by the defendant; and therefore the jury is instructed to find for the defendant.” The giving of the instruction was excepted to. The plaintiff then took a non-suit, and immediately moved to set the same aside for all the usual reasons; which motion was overruled and exceptions taken to that act of the court.

SPALDING, for Appellant.

I. It is a general rule of law, that the construction of a policy of insurance is to be liberal in favor of the assured. Hughes on Ins. 144-5; Park on Ins. 30; Smith's Mer. Law (Geyer's copy, notes), 412. 1 Dun. on Ins. 161; 1 Sumner, 437, at page 440, the court say, that a condition in a policy is taken most strongly against the policy for whose benefit it is, where it imposes a burden.

II. Loss by blowing up with powder to prevent the spread of the conflagration, is a loss by fire within policies of insurance. 21 Wend. 368, on the point; 13 Johns. 457, on the point; 11 Peters, 213, on the point.

III. The plaintiff complied with the conditions on his part, which were preliminary to the adjustment and recovery of loss, so far as giving notice was concerned. 1. Notice was reasonably given, according to the terms of the policy, which it requires to be given “forthwith.” It was verbally given by plaintiff, who personally, in two or three days after the fire, called on the agent of the defendant, and said he was burnt out, &c. 10 Pick. 535. Verbal notice of loss sufficient, no other being required. 11 Mo. R. 278. ““Fort...