Swanson, Inc. v. Central Sur. & Ins. Corp.

• Decision Date: 19 November 1938
• Docket Number: 35260
• Citation: 121 S.W.2d 783,343 Mo. 350
• Parties: Swanson, Inc., a Corporation, Appellant, v. Central Surety & Insurance Corporation
• Court: Missouri Supreme Court

121 S.W.2d 783

343 Mo. 350

Swanson, Inc., a Corporation, Appellant, v. Central Surety & Insurance Corporation

No. 35260

Supreme Court of Missouri

November 19, 1938

Appeal from Jackson Circuit Court; Hon. A. A. Ridge, Judge.

Affirmed.

Chas M. Howell, Floyd E. Jacobs and Wm. H. Allen for appellant.

(1) The court erred in giving declaration of law lettered "a," requested by defendant, because the evidence in this case was conflicting and said peremptory declaration of law, directing a finding for defendant, was in effect a demurrer to plaintiff's evidence, and not a proper declaration of law by the court. U.S. Savs. & Loan Assn v. U.S. Fid. & Guar. Co., 66 S.W.2d 550; Butler County v. Boatmen's Bank, 143 Mo. 23, 44 S.W. 1049; Crossett v. Ferrill, 209 Mo. 704, 108 S.W. 52; Vincent v. Means, 184 Mo. 327, 82 S.W. 96. This declaration of law is erroneous because it invades the province of the jury: (a) Where a case is tried before a jury, and the evidence is conflicting, it is error for the court to instruct the jury concerning the sufficiency of the evidence adduced by either plaintiff or defendant. Glasgow v. Copeland, 8 Mo. 268; Houghtaling v Ball, 19 Mo. 84; St. Vrain v. Columbia Bottom Levee Co., 56 Mo. 590; Cook v. Hannibal & St. J. Ry. Co., 63 Mo. 397; Kelly v. Hannibal & St. J. Ry. Co., 70 Mo. 604. (b) The rule is the same where the case is tried before the court, sitting as a jury. Kauffman-Wilkinson Lbr. Co. v. Christophel, 62 Mo.App. 98; De Graw v. Prior, 53 Mo. 313; Vincent v. Means, 184 Mo. 327, 82 S.W. 96; Jaicks Co. v. Schoellkopf, 220 S.W. 486; Saucier v. Kremer, 297 Mo. 461, 249 S.W. 640. The court erred in giving the findings of fact and then giving declarations of law. Under Section 952, Revised Statutes 1929, in a jury waived case, the court upon request must make findings of fact and then state separately its conclusions of law. Or the court can, in a jury waived case, give declarations of law. But the court cannot make a finding of fact and then give declarations of law, as was attempted in this case. Backer v. Seaboard Fire & Marine Ins. Co., 174 Mo.App. 86, 156 S.W. 829; Suddarth v. Robertson, 118 Mo. 286, 24 S.W. 151; Kostuba v. Miller, 137 Mo. 161, 38 S.W. 946; Falvey v. Hicks, 315 Mo. 442, 286 S.W. 385. (2) The court erred in giving declarations of law lettered "b," "c" and "d," requested by defendant, because: (a) The provision of the policy, referred to in said declarations, is ambiguous and as such should be construed most favorably to the insured. Blackwell v. Maryland Cas. Co., 52 S.W.2d 289; Block v. U. S. F. & G. Co., 290 S.W. 439; State ex rel. v. Allen, 305 Mo. 614, 267 S.W. 381; Dolph v. Maryland Cas. Co., 303 Mo. 549, 261 S.W. 332; Mathews v. Modern Woodmen, 236 Mo. 342, 139 S.W. 156; 1 Couch on Insurance, sec. 188a, pp. 402, 403, 404; State ex rel. Mills v. Trimble, 39 S.W.2d 359, 327 Mo. 899; Mutual Sponging Co. v. Prep. Acc. Ins. Co., 161 N.Y. 309, affirmed 165 N.Y.S. 1116. (b) Said declarations of law erroneously held that the words "of which force and violence there shall be visible marks made upon such premises at the place of such entry by tools, explosives, electricity or chemicals," as used in the indemnity clause of the policy in suit, were definitive of the burglary coverage under said policy. Under the rule announced in subparagraph (c) supra, the words should be construed as an attempt to limit the kind of evidence that must be produced to prove the commission of a burglary (admittedly committed) by actual force and violence, and hence said words constituted an infringement on the province of established judicial procedure and as such were void. Blackwell v. Maryland Cas. Co., 52 S.W.2d 288; Rollins v. B. M. A. Assn., 204 Mo.App. 679, 220 S.W. 1022; First Natl. Bank of K. C. v. White, 220 Mo. 736, 120 S.W. 42; Amer. Benefit Assn. v. Hall, 185 N.E. 344, 96 Ind.App. 498; Utter v. Travelers Ins. Co., 65 Mich. 545, 8 Am. St. Rep. 913, 32 N.W. 812; Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18; Fidelity & Deposit Co. v. Davis, 129 Kan. 790, 284 P. 430, 68 A. L. R. 330; Fidelity & Deposit Co. v. Nordmarken, 155 N.W. 669, 32 N.D. 19; Arnold on Suretyship & Guaranty, sec. 231, p. 367, cited with approval in 68 A. L. R. 325; Reynolds v. Equitable Acc. Assn. of Binghampton, 49 Hun, 605, 59 Hun, 13, 1 N.Y.S. 740, affirmed in 121 N.Y. 649, 24 N.E. 1091; Travelers Ins. Co. v. McConkey, 127 U.S. 661, 8 S.Ct. 1363, 32 L.Ed. 308; Fidelity & Casualty Co. v. Eickhoff, 63 Minn. 170, 65 N.W. 351, 30 L. R. A. 586, 56 Am. St. Rep. 464. (c) It is against public policy to permit the rules of evidence in legal proceedings to be varied by contract. Rollins v. B. M. A. Assn., 204 Mo.App. 679, 220 S.W. 1022; First Natl. Bank of K. C. v. White, 220 Mo. 736, 120 S.W. 42; Fidelity & Deposit Co. v. Davis, 129 Kan. 790, 284 P. 430, 68 A. L. R. 330; Arnold on Suretyship & Guaranty, sec. 231, p. 367.

McCune, Caldwell & Downing, Lynn Webb and R. S. Eastin for respondent.

(1) The court did err in stating the conclusion of law lettered "a." It was not a peremptory direction of a judgment for defendant, or a demurrer to plaintiff's evidence. It was not erroneous as invading the province of the "jury." Central States Assn. v. U. S. F. & G. Co., 334 Mo. 580; Secs. 952, 967, R. S. 1929; Painter v. Prudential Ins. Co., 228 Mo.App. 576; Todd v. Terry, 26 Mo.App. 598; Monnig v. Easton Amusement Co., 27 S.W.2d 495; K. C. Wholesale Gro. Co. v. McDonald, 118 Mo.App. 471; Kostuba v. Miller, 137 Mo. 161. (a) The stating of conclusions of law by the trial court was not inconsistent with the making of findings of fact. If it were otherwise, or if it were concluded there was technical error in connection with the propositions discussed under (1), above, such "error" would be disregarded as immaterial and nonprejudicial. Kostuba v. Miller, 137 Mo. 161; Green v. Whaley, 258 Mo. 530; Sutter v. Raeder, 149 Mo. 297; Rausch v. Michel, 192 Mo. 293; Secs. 821, 1062, R. S. 1929; Falvey v. Hicks, 315 Mo. 442; Baumhoff v. Railroad Co., 171 Mo. 120; Dollarhide v. Mabary, 125 Mo. 197; Stewart v. Grain Co., 163 Mo.App. 473. (2) The court did not err in stating the conclusions of law which are lettered "b," "c" and "d." (a) The insuring clause of the policy referred to in said findings is not ambiguous. (b) Said conclusions correctly declared that the words "of which force and violence there shall be visible marks made upon such premises at the place of such entry by tools" were definitive of the coverage under the policy sued on. Said words should not be construed as any attempt to limit the kind of evidence necessary for a recovery, did not infringe upon the province of the courts, and said provision was not void. (c) Whether public policy forbids rules of evidence to be varied by contract is not an issue here because the insuring clause in question was not in reference to a rule of evidence, but was definitive of the risk insured against. Rosenthal v. Am. Bonding Co., 207 N.Y. 162, 100 N.E. 716, 46 L. R. A. (N. S.) 561; American Surety Co. v. Southern Oil Stores, 24 Ala.App. 114, 133 So. 298; Lee v. Preferred Acc. Ins. Co., 215 N.Y.S. 366; United Sponging Co. v. Preferred Acc. Ins. Co., 161 N.Y.S. 309; Abt v. Natl. Surety Co., 230 Ill.App. 242; Komroff v. Maryland Cas. Co., 105 Conn. 402, 135 A. 388; Remedial Co. v. Indemnity Ins. Co., 169 Okla. 199, 36 P.2d 858; Schoenfeld v. Royal Indemnity Co., 76 Pa.Super. Ct. 299; Natl. Surety Co. v. Volk Bros., 125 Tex. 398, 82 S.W.2d 398; Wakem & McLaughlin v. Royal Indemnity Co., 241 Ill.App. 427; Imperial Trading Co. v. Maryland Cas. Co., 153 So. 473; Frankel v. Mass. Co., 177 S.W. 775; Union Indemnity Co. v. Kleier Co., 34 F.2d 738. (d) Plaintiff's suggested constructions of the insuring clause are erroneous and the authorities cited in its brief are not in point.

Bradley, C. Ferguson and Hyde, CC. concur.

OPINION

BRADLEY

This is an action on a burglary insurance policy covering merchandise, etc., in plaintiff's store in Kansas City. Plaintiff sought to recover $ 8361.15, plus interest, and for penalty and attorney's fees for alleged vexatious refusal to pay. The cause was tried before the court without a jury, and the finding and judgment were for defendant, and plaintiff appealed.

There is no question as to the loss. The chief questions are on the construction and validity of what we may term the visible marks at place of entry requirement in the policy; on a so-called declaration of law given at the request of defendant; and because the court made a finding of facts and gave declarations of law.

Plaintiff appellant here, conducted a store at 1116 Baltimore Avenue, Kansas City, and handled ladies' ready to wear, sports wear, millinery and novelties. The store did not open for business until nine a. m. About six a. m., October 17, 1933, Mark Clay, the store porter, went, as had been his custom, to the store to clean up and get things ready for the opening of the store by nine a. m. At the front of the store were double doors that opened into a vestibule, and from the vestibule double swinging doors opened into the store. The front doors, facing east, were locked with three locks, one a padlock, the others Yale. The porter unlocked the front doors (which unlocking released one of them) and entered, intending to close the released door which, when closed from the inside, would lock with the Yale locks. But before the porter got the door closed, a man ran up and stuck his foot in the opening and threw his shoulder against the released door. This man had a pistol in his hand, and both he and the porter pushed on the door. The porter from the inside was trying to close the door and the man from the outside was trying to enter. The man "put the pistol on" the porter and told him "to stick 'em...