Stephens v. Fire Association of Philadelphia

• Decision Date: 06 December 1909
• Citation: 123 S.W. 63,139 Mo.App. 369
• Parties: J. E. STEPHENS, Respondent, v. THE FIRE ASSOCIATION OF PHILADELPHIA, Appellant
• Court: Missouri Court of Appeals

123 S.W. 63

139 Mo.App. 369

J. E. STEPHENS, Respondent, v. THE FIRE ASSOCIATION OF PHILADELPHIA, Appellant

Court of Appeals of Missouri, Springfield

December 6, 1909

Appeal from Jasper Circuit Court.--Hon. Haywood Scott, Judge.

AFFIRMED.

Judgment affirmed.

Fyke & Snider and Clay & Davis for appellant.

(1)Defendant's demurrer at the close of plaintiff's case should have been sustained.There is no evidence tending to show the explosion which caused the damage complained of was caused and preceded by the fire.Home Lodge Assn. v Insurance Co.,110 N.W. 778;Biggs v. Insurance Co.,53 N.Y. 446.(2) The evidence fails to show the amount of damage sustained, as the result of fire, if any and the amount of damage caused by explosion and from the evidence it was impossible to determine that fact and the verdict is not based upon any evidence showing an amount of fire damage.Insurance Co. v. Hyman,94 P. 27.(3) The judgment should be reversed because the evidence shows what little fire there was in plaintiff's apartment, if any, was preceded by an explosion not caused by a fire then existing, and that said explosion occasioned whatever damage was sustained.Hener v. Insurance Co.,19 L. R. A. 594(Ill.);Biggs v. Insurance Co.,53 N.Y. 446;Miller v. Insurance Co.,41 Ill.App. 395;Wood on Fire Insurance, sec. 104.

McIndoe & Thurman for respondent.

(1) First, there is ample evidence to show that the fire preceded the explosion and that the damages was in consequence of fire.Under the policy if the fire precedes the explosion the defendant is liable.1 Wood on Fire Insurance(2 Ed.), sec. 104; May on Fire Insurance(2 Ed.), sec. 114;Scripture v. InsuranceCo., 10 Cush.(Mass.) 356;LaForce v. Insurance Co.,43 Mo.App. 527;Washburn v. Insurance Co.,2 F. 633;Renshow v. Insurance Co.,103 Mo. 595;33 Mo.App. 606;Cohen v. Insurance Co.,96 Mo.App. 315; see notes to 29 L. R. A. 597.(2) When evidence is conflicting findings of the trial court will not be disturbed.Sparks v. Jasper Co., ___ S.W. 207;Everman v. Eggers,106 Mo.App. 732.(3)Courts cannot take judicial knowledge that gas will explode without an intervening agency.McGahn v. Ind. Gas. Co., 29 L. R. A. 656.

NIXON, P. J. Cox, J., concurs; Gray, J., not sitting.

OPINION

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, Missouri, which furniture was damaged and destroyed by a fire and an explosion on January 12, 1908, at about five 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 four to five thousand dollars.The amount of the policy issued by the defendant company was one thousand dollars 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 under its policy for damage which may have been done to plaintiff's property by explosion plaintiff must show, and the burden is upon plaintiff to show that said explosion was caused by a fire burning at the time of or before such explosion."Now the appellate court, in the consideration of the weight and sufficiency of the evidence in this case, is not bound by the declarations of law of the trial court as to the burden of proof if such declarations are not a true expression of the law.

The argument of the appellant as to who should bear the burden of proof in showing whether the fire preceded the explosion or the explosion preceded the fire was that the burden of proof was upon the plaintiff to show that the fire preceded and caused the explosion.His argument was to the effect that if the fact of an explosion has once been established, the defendant is not liable for its damage unless it was preceded by a fire, and that there is no more reason for saying that the burden of proving its own innocence is upon the defendant than if some other thing had happened which resulted in the destruction of the property; that the evidence of a fire previous to the explosion is denied in the answer and it raised a question to be established by plaintiff's evidence.

The rule as to the burden of proof in cases of this kind upon policies of insurance has received repeated adjudications and is so well established as to be no longer open to controversy.In our own jurisdiction, the courts have passed upon this question and the law may be stated as follows: In an action on a policy of (accident) insurance, the plaintiff should allege and prove the issuance of the policy, the payment of the premium, the death of the assured, the giving of notice, and the making of proof and the general compliance with the conditions of the policy, and 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 the terms and conditions of the policy.[Hester v. Fidelity & Casualty Co.,69 Mo.App. 186;Meadows v. Pacific Mutual Life Ins. Co.,129 Mo. 76, 31 S.W. 578.]The same rule of law as to burden of proof as was applied in the above cases of accident policies applies to fire policies.The law is well stated in the case of German American Ins. Co. v. Hyman(Colo.),94 P. 27, 32, in this language: "The rule as to the burden of proof on this subject may be stated as follows: When the assured has shown the execution of the contract, also the loss together with the amount thereof, the burden is on the insurer to prove that the loss or a part thereof is within one of the exceptions stated in the policy.It is hardly necessary to cite authorities upon this proposition.It is strictly in harmony with recognized rules for the construction of contracts. . . .Suit being brought upon the contract, it is for the insurer, who resists the recovery, to plead the exception upon which he relies, and to sustain the plea by appropriate proofs.It follows that in the cases at bar the burden was on defendants to aver and prove that the loss or some portion thereof was within the foregoing exception.That is to say, the burden was upon defendants to show that the explosion...