Todd v. Germania Fire Ins. Co.
| Decision Date | 21 March 1876 |
| Citation | 1 Mo.App. 472 |
| Parties | J. H. TODD et al., Appellants, v. GERMANIA FIRE INSURANCE COMPANY, Respondent. |
| Court | Missouri Court of Appeals |
Plaintiffs sued on a fire policy insuring the stock of a commission merchant which might be on hand in a certain warehouse at any time during a fixed period. The petition alleged that a lot of buffalo meat belonging to the holder of the policy was destroyed by fire during the period designated, but failed to show that it was in the warehouse mentioned in the policy. Held, bad on demurrer, as not stating facts sufficient to constitute a cause of action.
APPEAL from St. Louis Circuit Court.
Affirmed.
Fisher & Rowell, for appellants, cited: 1 Pars. on Mar. Ins. 45; 2 Pars. on Mar. Ins. 442; Ph. on Ins., sec. 412; 2 Pars. on Con. 442; Wise v. St. Louis Ins. Co., 23 Mo. 84; De Forrest v. Fulton Ins. Co., 1 Hall (N. Y.), 84-135; Walters v. Monarch Life Ins. Co., 34 Eng. Law & Eq. 116; Kearney v. Sunderland Ins. Co., 6 Eng. Law & Eq. 312; Farrow v. Commercial Ins. Co., 18 Pick. (Mass.) 53; Griffin v. Pugh, 44 Mo. 328; Meigs v. Lowell, 10 Mo. 538; Day v. Patterson, 18 Ind. 114; Bird v. Lewis, 7 Ind. 615; Cloud v. Norman, 18 Ind. 44; Marchington v. Vernon, 1 B. & P. 101; Hall v. Marston, 7 Mass. 575; Sargeant v. Morris, 3 B. & A. 276; Ruan v. Gardner, 1 Wash. 145; Maryland Ins. Co. v. Graham, 4 Har. & J. (Md.) 62; Skurver v. Stocks, 4 B. & A. 437; Felton v. Dickinson, 10 Mass. 287.
O. S. Baker, for respondent.
The Germania Fire Insurance Company issued, on December 7, 1872, to Rich & Swansey, commission merchants chants in St. Louis, Missouri, a policy of insurance on a stock of produce, their own, held by them in trust on consignment, or sold but not delivered, contained in the second story of the four-story brick building situated and known as No. 312 North Commercial street, St. Louis, Missouri, to an amount not exceeding $1,000.
This policy was, with consent of the defendant, assigned to Rich & Co. The petition states further that, in January, 1873, the firm of Todd & Co. sent to Rich & Co. a lot of buffalo meat; that this was forwarded to Rich & Co. to be sold by them as the factors of the plaintiffs; that they received said property and held the same as commission merchants; and that while they so held it, to wit, on January 11, 1873, a fire occurred, by which the said property was totally destroyed. Notice was given, proof of loss made, and, no payment being made, this suit was brought.
The defendant demurred, assigning as reasons for the demurrer:
1. That the petition did not state facts sufficient to constitute a cause of action.
2. That there is a defect of parties, and that Rich & Co. should have been the plaintiffs.
3. That Todd & Co. have no legal capacity to sue, as no interest in the contract of insurance shown vested in them.
The Circuit Court, at special term, sustained the demurrer. The plaintiffs appealed to the general term, which affirmed the judgment, and the case comes here by appeal.
The case was argued before us by the counsel for the appellants, but the respondent did not appear. It was argued as if the only objection raised by the record was that the action was not in the name of the insured or his assignee. We are of opinion that there is another, and, as we view it, an entirely fatal objection to the case made by the petition. The property is insured as a “stock of produce, their own, held by them in trust on consignment, or sold but not delivered, contained in the second story of the four-story building situated and known as No. 312 North Commercial street, St. Louis, Missouri.” What is the meaning of this description? If it were not that the terms “stock, produce, etc.,” imply that the insured was engaged in a business which required the keeping up of stock to some standard, these words would signify that a quantity of existing merchandise, stored at a particular place, was the subject of insurance. If, instead of being a...
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