Stephens v. Fire Ass'n of Philadelphia

• Decision Date: 06 December 1909
• Citation: 123 S.W. 63
• Parties: STEPHENS v. FIRE ASS'N OF PHILADELPHIA.
• Court: Missouri Court of Appeals

123 S.W. 63

STEPHENS v. FIRE ASS'N OF PHILADELPHIA.

Springfield Court of Appeals. Missouri.

December 6, 1909.

1. EVIDENCE (§ 90) — BURDEN OF PROOF — FORM OF PLEADING—EFFECT.

Where the burden of proof lies upon one party, it cannot be thrown upon the other party by the form of the pleading.

2. INSURANCE (§ 646)—ACTION — PLEADING — BURDEN OF PROOF.

In an action on a fire policy for a loss by fire accompanied by an explosion, the policy excepting loss caused by explosion unless fire ensued and then only for the loss by the fire, an allegation of the complaint that the goods were destroyed by fire "which did not happen from any of the causes excepted in said policy," did not throw on plaintiff the burden of proving that fire preceded the explosion.

3. APPEAL AND ERROR (§ 846)—EVIDENCE— DECLARATION OF TRIAL COURT—BURDEN OF PROOF.

The court on appeal, in the consideration of the weight and sufficiency of the evidence, is not bound by incorrect declarations of law of the trial court as to the burden of proof.

4. INSURANCE (§ 646)—PRIMA FACIE CASE— BURDEN OF PROOF.

In an action on a fire insurance policy, where insured has shown the issuance of the policy, the payment of the premiums, the loss, notice to the insurer and a general compliance with the conditions of the policy, if the answer sets up special and affirmative matters of defense under the terms of the contract, it is error to instruct that plaintiff must prove a compliance with all of the terms and conditions of the policy.

5. INSURANCE (§ 422)—EXCEPTIONS IN POLICY —"NEGLIGENT OR UNLAWFUL FIRE"—"INNOCENT FIRE."

Where a fire insurance policy contained an exception that the company would not be liable for loss caused by explosion of any kind unless fire ensued, and in that event for the damages by fire only, a loss occurring solely from an explosion, not by a preceding fire, or an explosion which occurred from the contact of escaping natural gas with a lighted match, are within the exceptions of the policy; the rule being that the ignition of the explosive substance must be caused by an actual combustion involuntarily or illegally started, which is called a negligent or unlawful fire, and not a harmless combustion such as a lighted match, burning gas jets, or a lighted cigar, which are called innocent fires.

6. EVIDENCE (§ 587)—CIRCUMSTANTIAL EVIDENCE—CHAIN OF CIRCUMSTANCES.

Where a defense in an action depends upon circumstantial evidence, the circumstances must form a connecting chain pointing to a single conclusion.

7. INSURANCE (§ 665)—EVIDENCE—SUFFICIENCY TO SUPPORT JUDGMENT.

In an action on a fire policy, evidence held to support a judgment for plaintiff.

8. APPEAL AND ERROR (§ 1010)—COURT AS JURY—INTERFERENCE WITH FINDINGS—FINDINGS SUPPORTED BY EVIDENCE.

Where a jury had been waived and the parties consented that the trial judge should sit as a jury, the court on appeal cannot interfere with his finding of the facts unless it appears that there was no substantial evidence to support them.

9. APPEAL AND ERROR (§ 1046) — HARMLESS ERROR—REMARKS OF TRIAL JUDGE.

In an action on a fire policy, remarks by the trial judge that "it understood from its experience how these insurance companies do in fire cases," while calculated to shake the confidence of the litigant in the impartiality of the court, was not reversible error, where the court on appeal finds the judgment correct.

10. APPEAL AND ERROR (§ 173)—DEFENSE NOT MADE BELOW—CONSIDERATION ON APPEAL.

In an action on a fire policy, it is no defense, on appeal, that plaintiff subsequent to recovering judgment on the policy commenced suit against the owner of the building in which the fire took place for negligence in failing to properly maintain the gas pipes by reason of which an explosion took place, damaging his property; such defense being untimely and foreign to the record.

Appeal from Circuit Court, Jasper County; Haywood Scott, Judge.

Action by J. E. Stephens against the Fire Association of Philadelphia. Judgment for plaintiff, and defendant appeals. Affirmed.

Fyke & Snider and Clay & Davis, for appellant. McIndoe & Thurman, for respondent.

NIXON, P. J.

This is an action on a fire insurance policy. The petition alleges that the property insured was household furniture on the first floor just above the basement of what is known as the Olivia Apartment House, on the corner of Fourth and Moffett streets in Joplin, Mo., which furniture was damaged and destroyed by a fire and an explosion on January 12, 1908, at about 5 o'clock in the morning. The basement underneath this apartment was used for lockers and storage for tenants in the building, and it was in this basement that the fire and explosion occurred by which the contents of the building were badly wrecked and damaged, including household goods and other personal property alleged to have been worth, at a sound value, from $4,000 to $5,000. The amount of the policy issued by the defendant company was $1,000, and plaintiff recovered judgment for that amount in the trial court. In its answer to the petition, the defendant insurance company set up, among other things, a clause in the policy to the effect that "this company shall not be liable for loss caused by explosion of any kind unless fire ensues, and, in that event, for the damage by fire only." The case was tried by both parties, evidence introduced, and instructions given upon the same theory—that if the fire preceded the explosion, and the explosion was an incident of the fire and was caused by it, the insured could recover the fire damage only. The evidence tended to show— and the fact was practically admitted by both litigants—that a severe explosion happened in the building, with probabilities that it occurred from natural gas in the basement directly under the apartment occupied by the plaintiff. The plaintiff offered no evidence tending to separate the damage done by the explosion from that done by the fire, and his recovery, so far as shown, is a general damage caused both by the explosion and the fire. The evidence clearly shows that a portion of the damage suffered resulted from the explosion, so that in this case the defendant is not liable for any explosion damage unless the explosion occasioning such damage was preceded by a fire which caused it. The contested point in this case is therefore one of evidence—whether the explosion which wrecked and damaged the plaintiff's furniture was preceded by a fire which caused it; for, if it was not preceded by a fire, then the defendant is not liable for any damage, as the plaintiff offered no evidence of the amount of his damage done by fire subsequent to the explosion, and there would be nothing upon which to base a verdict against the defendant.

At the very threshold of this investigation, the most important question to determine is: Upon whom rests the burden of proof and the burden of evidence? The petition of the plaintiff alleges, among other things, that the injuries to the plaintiff's property were caused by a fire, and that "said goods so insured were destroyed, injured, and damaged on account of said fire and water and in consequence thereof which did not happen from any of the causes excepted in said policy." The appellant in the presentation and argument of this case proceeds upon the theory that, by this allegation of the petition, the respondent undertook and was bound to show, that the fire preceded the explosion. Such claim is made on account of this peculiar language just quoted from the plaintiff's petition. This is an erroneous construction of the law in reference to the burden of proof, and proceeds upon the mistaken theory that the form of pleading governs as to the burden of proof, and that, by changing the form of the pleading, the burden of proof can be shifted. Such is not the law. "Where the burden of proof lies upon one party, it cannot be thrown upon the other party by the form of the pleading." State v. Melton, 8 Mo. 417. The court, in giving its instructions at the conclusion of the trial of this case, made its declaration of law that the burden of proving that the fire preceded the explosion was upon the plaintiff, and gave the following instruction at the instance of the defendant: "The court declares as a matter of law that, in order to render defendant liable...