The State ex rel. North British & Mercantile Insurance Co. v. Cox

• Decision Date: 12 March 1925
• Docket Number: 25318
• Citation: 270 S.W. 113,307 Mo. 194
• Parties: THE STATE ex rel. NORTH BRITISH & MERCANTILE INSURANCE COMPANY v. ARGUS COX et al., Judges of Springfield Court of Appeals
• Court: Missouri Supreme Court

270 S.W. 113

307 Mo. 194

THE STATE ex rel. NORTH BRITISH & MERCANTILE INSURANCE COMPANY v. ARGUS COX et al., Judges of Springfield Court of Appeals

No. 25318

Supreme Court of Missouri

March 12, 1925

Decision of Court of Appeals quashed (in part).

Leahy Saunders & Walther for relator.

(1) The error in giving Instruction A, purporting to cover the whole case, but omitting any reference to gasoline defenses pleaded and in evidence, was not cured by giving another instruction submitting that issue to the jury. Hall v. Manufacturers Coal & Coke Co., 260 Mo. 351; Jaquith v. Fayette R Plumb, 254 S.W. 89; State ex rel. Long v Ellison, 272 Mo. 571, 582. (2) Instruction B, on the measure of damages, is erroneous in that the right of recovery under a fire policy covering personal property is limited to the difference between the value of the property before the fire and the value of the salvage after the fire. R. S. 1919, sec. 6231; Non-Royalty Shoe Co. v. Phoenix Assurance Co., 277 Mo. 399; Security Printing Co. v. Connecticut Fire Ins. Co., 209 Mo.App. 422; Tinsley v. Aetna Ins. Co., 199 Mo.App. 693; McIntyre v. Liverpool, London & Globe Ins. Co., 131 Mo.App. 88; Sharp v. Niagara Fire Ins. Co., 164 Mo.App. 475.

OPINION

White, J.

Certiorari to the Springfield Court of Appeals. One F. A. Roselle, doing business under the firm name of Roselle Famous Players, recovered judgment against the relator on an insurance policy. The policy, for $ 3,000, was upon a private car, "Frankie N. 3," and all "the furnishings and fixtures, including linens, curtains, bedding, silverware, kitchen utensils, and other furnishings usually on a private car." The judgment was for $ 3900, made up as follows: $ 3,000, the value of the private car, which it was claimed was consumed by fire; $ 300 penalty for vexatious delay, and $ 600 attorney's fees. The Court of Appeals affirmed the judgment after requiring a remittitur of the last two items, allowing the judgment to stand for $ 3,000 for the value of the car.

I. We are asked to quash the record of the Springfield Court of Appeals on account of alleged conflict with the latest ruling of this court in two particulars: the first is stated in the opinion of the Court of Appeals, as follows:

"Appellant has set out plaintiff's Instruction B, which covers the entire case, and which merely tells the jury that if they believe the property was destroyed, that it was insured during the time the policy ran, and that plaintiff was the owner of the property, they would find for the plaintiff.

"The defendant asked an instruction which was given, that if at the time of the fire the plaintiff carried gasoline on the car other than for cooking purposes, the verdict must be for the defendant. The objection to this instruction is that there was a defense on the gasoline clause of the policy which plaintiff's principal instruction did not notice. This question may have been open to argument prior to the recent case of State ex rel. Jenkins v. Trimble, 291 Mo. 227, 236 S.W. 651. Under that authority the instruction of plaintiff, in omitting the defense, it being an affirmative defense and not being an element that entered into plaintiff's case, was not error. The defense having been covered in a proper instruction given at defendant's instance, it is unnecessary to discuss a long line of cases cited by appellant on this question, because it is settled so far as this court is concerned by the authority above cited."

The relator denies the correctness of the conclusion by the Court of Appeals, and asserts that the latest ruling in this court is Jaquith v. Plumb, 254 S.W. l. c. 93, where it is claimed an instruction such as that complained of was held error. The last expression of this court on the subject was State ex rel. Ambrose v. Trimble, 263 S.W. 840, l. c. 841, 842. In that case Court in Banc reaffirmed the doctrine stated in the case of State ex rel. Jenkins v. Trimble, 291 Mo. l. c. 234, and in the case of McIntyre v. Railroad, 286 Mo. l. c. 260, and other cases cited. Thus we have a leading case in Division One, and a leading case in Division Two, and the latest utterance of Court in Banc, which support the conclusion reached by the Court of Appeals. The rule is thus stated: where an instruction on behalf of the plaintiff authorizes a verdict on a finding by a jury of all the affirmative facts necessary for recovery, omitting mention of defense pleaded by the defendant, such instruction is erroneous, but it is always cured where such matters of defense are presented in an instruction given on behalf of the defendant. Earlier cases are cited in the McIntyre case. The ruling in State ex rel. Ambrose v. Trimble was by a divided court, but it settles, at least for the present, the question at issue on this point, for the Court of Appeals followed the last ruling of this court on the subject. It will be noted in the Ambrose case that the dissent is not directed especially at the doctrine, but at the particular form of the instructions which are claimed to be in conflict.

The doctrine is reasonable. A jury could not be misled where the plaintiff's case and the defendant's defense are clearly placed before them. As reasoning individuals they understood, in this case, that the plaintiff, in accordance with the terms of the policy claimed damages for total loss by reason of the fire. They also understood, of course, that the defense was a violation of one term of the policy in regard to keeping gasoline. They knew likewise that plaintiff could not recover unless they found there had been no violation of the terms of the policy, and they knew they were required to find for the defendant if they found the terms of the policy had been violated. There was no conflict in the two instructions, any more than if both hypotheses had been set out in one instruction. All instructions given must be considered together. The jury understood that. All of this matter is explained in the Ambrose case. We hold, therefore, that the ruling of the Springfield Court of Appeals on that proposition was not in conflict with the latest ruling of this court.

II. It is further claimed by relator that the ruling of the Springfield Court of Appeals in approving an instruction on the measure of damages is in conflict with the rulings of this court. What the Court of Appeals said in relation to that matter is as follows:

"It is next contended that the court erred in giving plaintiff's instruction on the measure of damage, in that it failed to follow Section 6231, Revised Statutes 1919, which pertains to the measure of damages in case of a partial loss. We cannot understand why this question should be brought into this case. The undisputed evidence is that this was a complete show car, used for the transportation of the troupe from place to place over the railroads, and that when it burned there was nothing left except the trucks and wheels. As we understand the law this is not a partial loss, but the car was insured as a car. True it is that the wheels and the trucks might have been put under another car, to be built thereon; and so might the bricks of a building that had been burned down be put into a new building. The law, as we understand it, is that if a fire has so disintegrated a building that it can no longer be designated as a building, though parts of it remain standing, it is, nevertheless, a total loss, and not a partial loss. We see no reason why the same should not apply to a railroad car which was insured. Certainly no one could say that the wheels and trucks of a car could be designated as a railroad show car. [See Stevens v. Fire Insurance Co., 120 Mo.App. 88, 96 S.W. 684, and cases therein cited.] There was evidence tending to show that the value of the car was sufficient to justify the amount of the verdict under the terms of the policy."

The instruction complained of is as follows:

"The court instructs the jury that if you find the issues for the plaintiff you will assess his damages at eighty per cent of the actual cash value of the property in question destroyed; not, however, exceeding the sum of three thousand dollars."

It will be noted that the question whether the loss was total or partial was not submitted to the jury. The court in its reasoning assumes that the loss was total, although the trucks and wheels were left unharmed. We know nothing about the relative value of those parts of the car and the superstructure. Nothing was said about the contents of the car which were included in the $ 3,000 value insured. The opinion interprets the term "total...