Rouse v. St. Paul Fire & Marine Insurance Company
| Decision Date | 02 March 1920 |
| Parties | J. D. ROUSE, Respondent, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Wilson A. Taylor, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Anderson Gilbert & Hayden for appellant.
(1) In order to recover upon a policy of the kind here sued on, the burden is upon the plaintiff to establish by the greater weight of the evidence that the damage done to the insured automobile resulted from its being in collision with another "automobile, vehicle, or object." Hardenburgh v. Employers' Liability Corporation, 138 N.Y.S. 662; Hardenburgh v. Employers' Liability Corporation, 141 N.Y.S. 502; Wettengill v. United States Lloyds, 157 Wis. 433; Stuht v. Fidelity & Guaranty Co., 154 P. 137; O'Leary v. Insurance Co., 96 S.W. 575. (2) If the damage done to the insured automobile results from its striking any portion of the roadbed, there can be no recovery. Stix v. Travelers Co., 175 Mo.App. 171; Wettengill v. U. S. Lloyds, 157 Wis. 433; Hardenburgh v. Employers' Liability Corporation, 141 N.Y.S. 502. (3) Instruction No. 1 was erroneous for the reason that it submitted issues which were broader than those raised by the pleadings and established by the evidence, and for the further reason that it referred the jury to the petition to determine the issues in the case, as well as the character of loss or damage insured against and sustained. Ebelmann v. Transfer Co., 3 Mo.App. 503; Bank v Dowler, 163 Mo.App. 65, 145 S.W. 943; Small v. Fuel Co., 179 Mo.App. 456, 465, 162 S.W. 712; Realty Co v. Obear, 195 S.W. 1070; Kain v. Railway Co., 29 Mo.App. 53; Brown v. Railway Co., 104 Mo.App. 691. (4) Instruction No. 1 was further erroneous in that it authorized a verdict for respondent if the jury found that plaintiff sustained loss or damage by accident, whereas his right of recovery under the policy depended upon his sustaining loss or damage by reason of the collision of his automobile with any other automobile, vehicle, or object. See authorities cited under subdivision 3.
H. F. Chenot and W. G. Schofield for respondent.
Plaintiff below brought suit to recover under a policy of automobile accident insurance issued to him by defendant. The policy sued upon, among other things, provides that it should cover damages to plaintiff's automobile by being, "in collision with any other automobile, vehicle or object, . . . excluding damages caused by striking any portion of the roadbed."
The petition alleges that plaintiff's automobile was damaged by reason of its skidding on the road, whereby the automobile was precipitated down an embankment along the side of the road and "came in contact and collided with the earth at the bottom of said embankment;" that the damage to the automobile and its equipment, which was the cost of the repairs on the same, was the sum of $ 241. The petition concludes with a prayer for judgment in the sum of $ 216 (which is the total sum of the damages alleged, less an item of $ 25 not covered by the policy of insurance), and also prays for ten per cent. of the said amount for vexatious delay in the payment of plaintiff's said loss, and for the sum of $ 200 for attorneys' fees necessitated by reason of the defendant's alleged vexatious delay and refusal to pay.
The answer is a general denial and a further answer that under the policy defendant would not be liable for any damages to plaintiff's automobile which was caused by said automobile striking any part of the roadbed of any road on which it was being driven and that whatever damage, if any, was caused to or suffered by plaintiff's automobile, "was caused by said automobile striking the roadbed of said road," for which reason defendant alleges that it is relieved of all liability to plaintiff for any damage which may have been suffered by said automobile.
The jury returned a verdict for plaintiff for $ 370.16 which included the full amount of the damages claimed with interest, plus ten per cent. as damages for vexatious delay, and an attorney's fee for plaintiff in the sum of $ 125. From the judgment rendered thereon the defendant in due course brings this appeal.
Learned counsel for appellant have correctly stated in their argument that the facts as shown by the record in this case are very meager, though uncontradicted. The case depends wholly upon the testimony of plaintiff's son who was driving the machine at the time of the accident, and who was the only witness testifying who knew the facts. His testimony is in effect that he was driving the automobile westwardly along Manchester road in St. Louis county; that at the point of the accident the road was so constructed that on the left-hand, or south side, there was an embankment and a ditch from four to six feet deep; that just before reaching this part of the road, as one approaches from the east, there is a slight curve in the road, which at this point is narrow and at the time of the accident was muddy and slippery, a rain having fallen very shortly before. While attempting to round said curve in the road the wheels of the automobile skidded off the road and the automobile turned over and rolled into the ditch.
On cross-examination plaintiff's son testified that the machine went off the road on the side toward the embankment and the machine turned over on its left side and rolled down the embankment into the ditch. In answer to the question: "And when your machine first turned over, the left-hand side of the machine hit the embankment and then it turned down over into the ditch?" He answered:
At the close of plaintiff's case the defendant asked for an instruction in the nature of a demurrer, which the court refused. The defendant offered no testimony.
Appellant's first assignment of error is the refusal of the court to give the requested instruction asked at the close of the case that the jury must find for defendant. Under the policy...
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