White v. Farmers' Mut. Fire Ins. Co.

• Decision Date: 05 January 1903
• Citation: 97 Mo. App. 590,71 S.W. 707
• Court: Missouri Court of Appeals
• Parties: WHITE v. FARMERS' MUT. FIRE INS. CO. OF DE KALB COUNTY, MO.<SMALL><SUP>*</SUP></SMALL>

71 S.W. 707

97 Mo. App. 590

WHITE v. FARMERS' MUT. FIRE INS. CO. OF DE KALB COUNTY, MO.^*

Court of Appeals at Kansas City, Missouri.

January 5, 1903.

INSURANCE — LIGHTNING POLICY — LOSS OF ANIMALS—ARBITRATION CLAUSE—RIGHT TO SUE — INTEREST — EVIDENCE — EXPERTS — VARIANCE—APPEAL—HARMLESS ERROR.

1. In an action against an insurance company to recover the value of insured cattle alleged to have been killed by lightning, it was error to permit a witness who had examined the cattle to state his opinion how they came to their death, over defendant's objection, where the witness had not qualified as an expert.

2. Where a witness was shown to have had experience and knowledge of the appearance of animals that had been struck by lightning, he was competent to give his opinion as to whether particular dead animals had been killed by lightning.

3. Where defendant introduced a witness as an expert, who testified that animals struck by lightning showed practically the same marks and indications testified to by a nonexpert witness, and other witnesses who testified for plaintiff, defendant was not prejudiced by the court's allowing such nonexpert witness to give his opinion as to whether plaintiff's cattle, bearing such indications, had been struck by lightning.

4. Where a witness denied knowledge of a fact inquired about, notwithstanding an objection to the question was sustained, error, if any, in sustaining such objection, was without prejudice.

5. Where defendant in an action on a policy to recover for cattle killed by lightning did not show by affidavit in what respect it had been misled by a variance between the petition, which alleged that the cattle killed consisted of five head of two year olds and two head of yearlings, and the proof that the cattle killed were five milch cows and three yearlings, as required by Rev. St. 1899, § 655, such variance was immaterial.

6. In an action on a policy providing that interest would not begin to run until 60 days after adjudication of loss, an instruction authorizing an allowance of interest from the date of the loss was error.

7. Where an insurer denied all liability on a policy insuring plaintiff against loss of cattle by lightning, on the ground that the cattle

were not killed by lightning, a provision of the policy that all disputes between the company and its members respecting the company's liability or the value of property destroyed must be settled by mutual agreement or by arbitration, and other proceedings in court were entirely prohibited, did not deprive plaintiff of his right to sue to recover the loss.

Appeal from circuit court, Andrew county; A. D. Burnes, Judge.

Action by Edward E. White against the Farmers' Mutual Fire Insurance Company of De Kalb County, Mo. From a judgment in favor of plaintiff, defendant appeals. Affirmed conditionally.

Kendall B. Randolph and Frank Costello, for appellant. Hewitt & Blair, for respondent.

BROADDUS, J.

This is a suit against the defendant, a mutual fire insurance company, of which the plaintiff is a member, on a policy issued to him on November 15, 1897, by which, for a valuable consideration, defendant insured him, among other property, against loss by lightning on his live stock. He claims that on April 26, 1900, while said policy was in force, of said live stock five head of two year old and two yearling cattle were killed by lightning, and became a total loss; that he gave defendant timely notice of his loss; and that defendant's board of directors duly ascertained and determined his loss to be of the sum of $234, which defendant has failed and refused to pay. The defendant's answer admits the contract of insurance, but denies that the animals were killed by lightning. The defendant further answered, setting up a condition of the policy that "all disputes between this company and any member thereof touching the point of liability of this company to pay any loss, or the value of property destroyed or damaged by fire or lightning, shall and must be settled by mutual agreement or by arbitration, and other proceeding in court is entirely prohibited," and also setting out a by-law of defendant prescribing the duty of the adjuster in adjusting losses, and also providing, in the event of a dispute between the assured and assurer, whether touching the question of the liability of the defendant to pay any loss, or the value of the property destroyed, for a settlement of such dispute by mutual agreement, or by arbitration; any other proceeding in court being prohibited. Further, that the plaintiff, in pursuance of said by-laws, being dissatisfied with the refusal of the defendant's committee of adjusters to allow him anything on his said claim for loss, applied in writing to defendant to have said disputed loss arbitrated, in accordance with the rules of defendant regulating such arbitration, and that thereupon, in accordance with such rules, arbitrators were appointed, time and place fixed for the hearing of the matter in dispute, at which time and place said arbitrators appeared, when plaintiff refused to further submit to such arbitration. All of which is pleaded in bar of plaintiff's action. On motion of plaintiff the court struck out all that part of said answer setting up said condition of the policy and by-laws, and the action of plaintiff in applying for arbitration, and his withdrawal before hearing and award, because the same constituted no defense to plaintiff's cause of action. The finding and judgment were for the plaintiff, from all which defendant appealed.

After an examination of all the evidence, we are satisfied that there was substantial testimony to show that the animals in question were killed by lightning. We will therefore give no further consideration to defendant's contention that the verdict of the jury is not supported by the evidence.

Specific objections are made to the action of the court in admitting improper, and refusing to admit proper, evidence. One C. D. Hill, a witness on behalf of the plaintiff, was asked the following question, viz.: "After examining the cattle, and taking all the facts and circumstances into consideration, tell the jury how, in your opinion, these cattle came to their...