Saint Louis Ins. Co. v. Kyle

• Decision Date: 31 March 1848
• Citation: 11 Mo. 278
• Parties: SAINT LOUIS INSURANCE COMPANY v. ROBERT KYLE.
• Court: Missouri Supreme Court

11 Mo. 278

SAINT LOUIS INSURANCE COMPANY

v.ROBERT KYLE.

Supreme Court of Missouri.

March Term, 1848.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

This was an action of covenant, commenced in the St. Louis Circuit Court on the 28th October, 1845, by the appellee against the appellant, on a policy of insurance to the amount of six thousand dollars, on manufactured tobacco, cut, chewing and smoking tobacco, leaf tobacco, presses, screws and fixtures, cutting-machine and fixtures, household furniture, shed and fixtures, against loss or damage by fire--the said articles being contained in a two-story stone building, situate north of Biddle street and near Roy's tower, being the property of Peter Lindell, and occupied by the assured as a tobacco factory. The insurance was for one year, commencing 25th November, 1844, and ending 25th November, 1845, at noon.

The terms and conditions were those usual in fire policies, being twelve in number--the 9th, 10th and 11th of which are material to be considered in the determination of the questions presented by the record. They are as follows:

IX. Persons sustaining loss or damage by fire shall forthwith give notice thereof in writing to the company, and as soon after as possible they shall deliver as particular an account of their loss and damage as the nature of the case will admit, signed by their own hands, and the same to be corroborated by the exhibit of the assured's books of account, and other vouchers in his power to furnish, whenever the same may be required. And they shall accompany the same with their own oath or affirmation, declaring the said account to be true and just--showing also what other insurances, if any, have been made on the same property; what was the whole value of the subject insured; in what general manner (as to trade, manufactory, merchandise or otherwise) the building insured or containing the subject insured, and the several parts, were occupied at the time of the loss, and who were the occupants of such building, and when and how the fire originated, as far as they know or believe. They shall also poduce a certificate, under the hand and seal of the magistrate or notary public most contiguous to the place of the fire, and not concorned in the loss, stating that he has examined the circumstances attending the fire, loss or damage alleged, and that he is acquainted with the character and circumstances of the insured or claimant, and that he verily, believes that he, she or they, have, by misfortune, and without fraud or evi practice, sustained loss or damage on the subject insured, to the amount which the magistrate or notary public shall certify; and until such proofs, declarations and certificates are produced, the loss shall not be payable.

X. All fraud or false swearing shall cause a forfeiture of all claims on the insurers, and shall be a full bar to all remedies against the insurer on the policy.

XI. In case differences shall arise touching any loss or damage, it may be submitted to the judgment of arbitrators, indifferently chosen, whose award in writing shall be binding on the parties, and payment shall be made in sixty days after the loss shall have been ascertained and proed, without any deduction whatever.

The defendant filed twenty-four pleas, all of which, except the 8th, 9th, 17th, 18th, 23rd and 24th, are to both counts. The 8th, 17th and 23rd are to the first count, and the 9th, 18th and 24th to the second count. The plaintiff demurred to the 17th, 18th, 20th, 21st, 23rd and 24th pleas; the demurrer was overruled as to the 17th and 18th pleas, and sustained as to the residue. The 1st, 2nd, 3rd, 5th, 7th, 8th, 9th, 10th, 11th, 19th and 22nd are denials of the averments in the declaration, in their order, to which the plaintiff formally joined issue and replied specially to each of 4th, 6th, 12th to 18th pleas, inclusive.

The 1st plea is non est factum; the 2nd and 3rd deny the interest of the plaintiff in the property at the time of the loss; the 5th denies the loss as alleged; the 7th traverses in detail the averment of a compliance with the 9th condition of the policy; the 8th denies that plaintiff did deliver a particular account of his loss, &c., as the nature of the case would admit of, and accompany the same with his oath or affirmation, showing whether any and what other insurances had been made on the property, in manner and form as in the first count alleged; the 9th is to the second count, in the same words as the 8th plea; the 10th denies that the plaintiff caused to be delivered to the defendant the certificate of Archibald Carr, to the effect and in the manner and form alleged; the 11th denies that the plaintiff delivered to the defendant an account, on oath or affirmation, showing how the fire originated, so far as he knew or believed, in manner and form, &c. the 19th denies the payment of premium, and the 22nd denies that the plaintiff did forthwith give notice of the loss, as averred; the 4th plea alleges that the property mentioned in the policy was described by the plaintiff otherwise than the same really were, so that the same was insured at a lower premium than it ought to have been; the 6th plea alleges that, at the time of the loss, the buildings, in which the property insured was, were occupied in such way as to render the risk more hazardous than they were at the time of insurance; the 12th plea alleges that in the claims made by the plaintiff, there was fraud within the true intent and meaning of the 9th and 10th conditions of the policy--that is to say, in taking the quantity, nature and value of the property, &c. the 13th alleges that in the oaths and affidavits, and each of them, made by the plaintiff in support of the claim for loss, &c., there was false swearing, within the meaning of the 9th and 10th conditions of the policy--in this, that he swore that the affidavit showed when and how the said fire originated, as far as the said plaintiff knew or believed, whereas the said affidavit did not show truly how said fire originated, as far as the plaintiff knew or believed; the 14th avers the loss to have been occasioned by the careless negligence and improper conduct of the plaintiff; the 15th charges that the fires were intentionally and fraudulently kindled, lit, &c., by the plaintiff; the 16th charges that the fires were caused to be kindled, &c., by the plaintiff; the 17th avers that when the building was burned the tobacco was not in the building, as alleged in the first count; the 18th is the same to the second count; the 20th plea alleges that the plaintiff did, since the making of the policy, and during the continuance thereof, appropriate, apply and use the building specified for the purpose of carrying on and exercising trade and business other than the business or vocation of a tobacco manufactory; the 21st states that, after the making the policy and during the continuance thereof, the plaintiff did use the said buildings and premises in the policy mentioned for the purpose of storing therein goods, chattels and merchandise not of the kind and description insured; the 23rd is to the first count, and states, that although the loss in that count mentioned happened on the 1st of April, yet the plaintiff did not give notice thereof until the 5th April, 1845, although the office of the defendant was in the city of St. Louis, and the plaintiff might have given the notice at any time; the 24th plea is the same to the second count.

The replications traverse the averments in the 4th, 6th, 14th, 15th and 16th pleas. The replication to the 12th plea is, that the plaintiff did, as soon as possible after the loss, give to the defendant as particular an account of the said loss and damage as the nature of the case would admit, as alleged in the declaration, and that there was no fraud within the meaning of the 9th and 10th condition, in the claim made for said loss or damage, nor was there any fraud in taking the quantity, nature or value of the said goods, in manner and form, &c. To the 14th plea, the replication is, that in the oaths and affidavits, &c., in support of the claims, there was not false swearing, nor did the plaintiff, in swearing where and how the said fire originated, as far as he knew and believed, swear falsely, and the said oath and affidavit showed truly how said fire originated, so far as said plaintiff knew and believed. The replications to the 17th and 18th pleas aver that the tobacco alleged to have been burnt up, was, at the time of the execution of the policy, contained in the building described therein. At the trial, the issues were found for the plaintiff and judgment rendered accordingly, from which this appeal is prosecuted.

At the trial, the plaintiff read in evidence, 1st, the policy of insurance as set forth in the policy, with the conditions therein referred to. 2nd. A notice signed by the plaintiff, bearing date the 5th of April, 1845, addressed to George K. McGunnegle, president of the St. Louis Insurance Company, notifying him that a certain stone house, lately occupied by Robert Kyle, containing a stock of tobacco, presses, furniture, &c., situate, &c., was consumed by fire on the morning of the first instant, which building was insured at the office of the St. Louis Insurance Company, as per policy No. 1529, and dated 25th November, 1844, and that depositions are now being taken before Archibald Carr. Esq., at his office, St. Louis township. 3rd. The application of the plaintiff for insurance, dated 25th November, 1844. 4th. The survey of the premises of same date. 5th. Proofs of loss relied on as a compliance with the 9th condition of the policy as follows:

STATE OF MISSOURI,

)

)

ss.

County of St. Louis,

)

Be it remembered, that on this fifth day of April, eighteen hundred and forty-five, before the undersigned, Archibald Carr, a justice of the peace within and for the county aforesaid, came Robert Kyle, who being by me duly sworn, on his oath deposeth and saith, that on the...