Rodefer v. Grange Mut. Ins. Co. of Lewis County

• Decision Date: 03 March 1936
• Docket Number: No. 23344.,23344.
• Citation: 91 S.W.2d 112
• Parties: RODEFER v. GRANGE MUT. INS. CO. OF LEWIS COUNTY.
• Court: Missouri Court of Appeals

91 S.W.2d 112

RODEFER v. GRANGE MUT. INS. CO. OF LEWIS COUNTY.

No. 23344.

St. Louis Court of Appeals. Missouri.

March 3, 1936.

Appeal from Circuit Court, Knox County; Harry S. Rouse, Judge.

"Not to be published in State Reports."

Action by Vick E. Rodefer against the Grange Mutual Insurance Company of Lewis County. From a judgment for plaintiff, defendant appeals.

Affirmed.

Walter M. Hilbert and Otto P. Shanks, both of Monticello, and Brown, Gibbons & Brown, of Edina, for appellant.

Gray Snyder, of Palmyra, James C. Dorian, of Edina, and Ben Ely, of Hannibal, for respondent.

BENNICK, Commissioner.

This is an action upon a policy of fire insurance. Tried to a jury in the circuit court of Knox county to which the case had been taken on change of venue from the circuit court of Lewis county, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $1,605. Judgment was rendered accordingly; and defendant's appeal to this court has followed in the usual course.

Defendant is a farmers' mutual insurance company duly organized and existing pursuant to the provisions of article 15, chapter 37, § 6056 et seq., R.S.1929 (Mo.St.Ann. art. 15, c. 37, § 6056 et seq., p. 4604 et seq.), and as such concededly issued to plaintiff the policy of insurance upon which this action is founded.

Under such policy defendant purported to insure plaintiff against loss or damage by fire or lightning in the aggregate amount of $4,330; the coverage of the policy including, among other things, the dwelling house of the insured, together with the items of household and kitchen furniture contained therein, and with the amount of insurance upon each of the items insured specifically stated in the policy.

On September 1, 1932, at a time when all premiums and assessments made against the insured under his policy had concededly been fully paid, a fire occurred which completely destroyed his dwelling house as well as numerous of the items of personal property specifically covered by the policy. After the fire, and in conformity with the requirements of his policy, plaintiff made due proof of loss to defendant, and filed his claim for the loss sustained by him within the coverage of his policy, which claim defendant rejected upon the theory that in the light of the circumstances attending the fire and the making of plaintiff's claim for loss sustained thereby there was no liability on its part under the policy.

Thereafter plaintiff instituted the present action by filing his petition herein in which, after alleging the issuance of the policy, the loss, and defendant's refusal to pay, he prayed judgment against defendant in the sum of $1,955.

In the answer filed by defendant, after setting up that the policy of insurance in question had been issued subject to defendant's constitution and by-laws which had formed a part of the contract entered into with plaintiff, it was alleged, among other things, that under the terms and provisions of said constitution plaintiff was not entitled in any event to recover more than two-thirds of the cash value of the items insured or the loss or damage sustained; that plaintiff, in the making of his claim against defendant, had misrepresented material facts and circumstances concerning his insurance and the subject thereof, and had attempted to perpetrate a fraud upon defendant, in consequence of which his policy was rendered void in its entirety under and by virtue of the provisions of the by-laws of the company; and that the fire in question had been caused by the willful, malicious, and fraudulent act of plaintiff himself, or by his agent acting under his direction, for the purpose of defrauding defendant.

Issue was joined upon the filing of plaintiff's reply in the conventional form; and then followed the trial, the entry of judgment, and defendant's appeal therefrom, all as has been heretofore indicated.

The first point for our consideration has to do with certain limitations put by the court upon the scope of defendant's examination of its witness Noble Day, a neighbor of plaintiff, who had gone to the scene of the fire immediately upon learning of it, and had assisted plaintiff in carrying certain of his effects out of the burning building. Day's testimony had been directed generally to the circumstances he had observed after arriving at the scene of the fire and while the conflagration was still in progress; and at the close of his recross-examination it was brought out by plaintiff's counsel that the witness was not intending to testify that plaintiff had set fire to the building and that as a matter of fact he did not know whether plaintiff had set fire to the building or not. Defendant's counsel thereupon took over the witness for redirect examination, and sought to interrogate him in regard to his personal opinion as to whether plaintiff had set fire to the building. Plaintiff's counsel promptly interposed an objection to the question, which objection was sustained by the court, and such ruling is now assigned as error.

We think the ruling of the court was entirely proper. The witness should have been limited, as he was, to a narration of the facts of the case as he knew them, and for him to have been permitted to express his own individual opinion about the cause of the fire would have been to allow him to invade the special province of the jury. The issue of how the fire had been caused was one concerning which the jurors, as ordinary men, were fitted to draw the correct conclusion from all the facts in evidence, and any opinion which the witness may have entertained upon that question was therefore properly excluded. Cole v. Empire District Electric Co., 331 Mo. 824, 55 S.W. (2d) 434; Miller v. Great American Insurance Co. (Mo.App.) 61 S.W.(2d) 205.

Defendant has a second claim of error in connection with the admission of evidence; the particular incident having occurred in the course of the examination of George F. Matthews, the treasurer of the company, who was called to testify in the case as a witness for defendant. In the redirect examination of the witness, he was asked by defendant's counsel to tell the jury, in the light of his information as an officer of the company over a period of some fifteen or sixteen years, how many of its losses the company had failed to adjust. Plaintiff's counsel objected to that line of examination, but was overruled by the court, and the witness thereupon testified that there had been no such instances that he knew of. Following such inquiry, plaintiff's counsel proceeded to go further into the matter on recross-examination, and endeavored to show by the witness, but without much success, that the company had in fact had losses which it had refused to pay. At the conclusion of his recross-examination, plaintiff's counsel renewed his objection to such line of inquiry, and moved the court to strike out all of the testimony of the witness with reference to any other loss than the loss in controversy, for the reason that the question of the attitude of the...