Wilson & Co. v. Hartford Fire Ins. Co.

• Citation: 254 S.W. 266,300 Mo. 1
• Decision Date: 09 April 1923
• Docket Number: No. 23229.,23229.
• Court: United States State Supreme Court of Missouri
• Parties: WILSON & CO. Inc. v. HARTFORD FIRE INS. CO.

254 S.W. 266

300 Mo. 1

WILSON & CO. Inc. v. HARTFORD FIRE INS. CO.

No. 23229.

Supreme Court of Missouri, Division No. 2

April 9, 1923.

Motion to Transfer to Court en Banc Ovberruled July 14, 1923.

Second Motion to Transfer to Court en Banc Stricken from Files July 28, 1923.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Wilson & Co., incorporated, against the Hartford Fire insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 190 App. Div. 506, 179 N. Y. Supp. 867.

Guthrie & Conrad, of Kansas City, and Bates, Hicks & Folonie, of Chicago, ill., for appellant.

Watson, Gage & Ems, of Kansas City, and Clifford G. Roe and William R. Brown, both of Chicago, Ill., for respondent.

WALKER, J.

This action is based on a contract of insurance, executed by appellant in the form of two separate policies indemnifying owners of live stock in the Kansas City stockyards against loss by fire, or as the result of mixing the live stock of two or more owners in removing same to a place of safety in the event of fire. One policy related to live stock on the Missouri, or native, side of the Kansas City stockyards, and the other to live stock on the Kansas, or quarantine, side of said stockyards. These policies were identical in form and substance, except as to the description of the location of the insured property.

The loss complained of arose out of a fire occurring in October, 1917, at the said stockyards. This fire destroyed the northern portion of the native, or Missouri, side of the stockyards, at a time when from 46,000 to 47,000 head of cattle were yarded therein. Of these cattle, 20,394 were released from the pens, and were afterwards salvaged by the appellant selling them at a public sale for the sum of $1,030,185.50; 921 head, injured by the fire, were sold by the appellant for the sum of $4,616.12; and 11,449 head were destroyed in the fire. The balance of the cattle in the southern portion of the yards were not injured nor released from the pens. The cattle belonging to the respondent in the yards at the time of the fire were outside of the fire limits, and the calves were at the very edge thereof, and were not burned, but were all released from their pens during the fire, and became a part of the salvaged cattle, which the appellant gathered and sold at public sale. The proceeds of such sales the appellant received, and has ever since retained.

After a trial, in which the issues were presented to a jury, a verdict was rendered in favor of the respondent on each count of its petition, and judgment rendered thereon. The verdict on the first count, which related to 680 head of cattle and 608 head of calves, lost on the Missouri side of the yards, was for the sum of $63,542.55. On the second count, which related to the loss on the quarantine side of the yards in Kansas, the verdict was for $5,415.91, and represented the value and cost of 108 calves and 38 cattle.

Appellant's policies, dated December 5, 1914, were issued to the Kansas City Live Stock Exchange "for the account of whom it may concern." The specific agreements as to coverage and liability in the first policy describe the character of the live stock covered as "cattle, calves, hogs, sheep, and goats, located on the premises of the Kansas City Stockyards Company of Missouri," and in the second policy, "on the premises of the United States Quarantine Stockyards Company of Kansas." These specific provisions, among others, were incorporated in the policies:

"The Kansas City Live Stock Exchange. For the account of whom it may concern. On live stock, consisting of cattle, hogs, calves, sheep, or goats, on the premises of the Kansas City Stockyards Company of Missouri, or in railroad cars on track adjacent thereto, situated in Kansas City, Missouri, and to continue while the property insured is under the control of any member of the above exchange, or of the Kansas City Stockyards Company of Missouri.

of the members of the above-mentioned exchange and the shippers whom they represent and also the interest of purchasers while this stock remains in the yards.

"It is agreed and understood that in case of loss, the liability of this company shall not be in excess of $150.03 on any one head of cattle, $35.00 on any one hog, $50.00 on any one calf, $15.00 on any one sheep or goat.* * *

"All live stock, as above described, located in the yards, buildings, or on the grounds of the Kansas City Stockyards Company of Missouri, under the control of any member of the above exchange or of the Kansas City Stockyards Company of Missouri is covered by this insurance. * * *

"It is specifically understood and agreed that if there be any specific insurance on live stock as above described, then this policy shall apply only after such specific insurance is exhausted. * * *

"It is the intent of this contract to cover any loss arising through the mixing of two or more owners' stock, and removing them to a place of safety in the event of fire to the property. * * *

"Loss under this policy to be adjusted with, and payable to, C. T. McCoun, president, or his successor in office, for the use and benefit of the owners of property injured or destroyed. * * *

"This insurance is intended to cover the forests of members of the above exchange, and shippers whom they represent, and interests of the purchasers while the stock remains on the premises of Kansas City Stockyards Company, or in cars on tracks adjacent thereto, and also the interest of the Kansas City Stockyards Company and the owners of live stock which it represents, including direct shipments and stock temporarily in said yards for rest, feed, and water.

"This insurance shall cover, and be for the benefit of, all owners or persons interested, and this policy is written in the name of Kansas City Live Stock Exchange for convenience, but shall inure to the benefit of all persons owning or interested in said live stock as their interests may appear, and shall have the same binding force as if their names were written herein."

The appellant denied liability and refused to adjust the loss, either through the Kansas City Live Stock Exchange or its president, or directly with the respondent, upon the sole ground that the latter had in force at the time of the fire a certain policy of insurance issued by the Globe & Rutgers Fire Insurance Company. Liability was denied on the ground that the policy issued by that company covered live stock owned by Wilson & Company in the Kansas City stockyards, and was specific insurance within the meaning of that term as used in the policies issued by appellant.

This policy, issued by the Globe & Rutgers D' ire insurance Company, was a blanket, or "floater's policy," indemnifying Wilson & Co., and 12 or 13 other distinct corporations subsidiary to Wilson & Co., both named and unnamed, against direct lass or damage by fire to real or personal property, including hogs, cattle, sheep, or poultry, wherever located in the United States of America, with the exception that it did not apply to or cover property situated at certain packing house plants operated by the assured, including the pack hag house plant operated by respondent at Kansas City, Kan. It contained the following specific provisions:

"It is understood and agreed that this policy covers Wilma & Co., Inc., Wilson & Co., Wilson & Co., Inc., of Oklahoma, as is now, or may be hereafter, constituted, for account at whom it may concern, including whatever interests the said companies have or may have in property in the several corporations in which the said companies have an interest or own shares of stock, and the interests of the said several corporations in or on the premises. $2,250,003. On buildings, stock, materials and supplies, hogs, cattle, sheep and poultry, the property of the assured, or held by them in trust or on commission, or on consignment, or sold, but not delivered, or for' which they may be liable, horses, mules, including all other property not specifically mentioned herein, wherever located, or to be located in the United States of America, except as hereinafter provided.

"It is understood and agreed that the limit of liability under this insurance shall be $100,000 in any one block bounded by four public streets, by any one fire.

"It is understood and agreed that this insurance does not apply to or cover property described above, while contained in or on assured's packing house plants, situated at the following locations: Kansas City, Kansas; Oklahoma City, Oklahoma; Long Island City, N. Y."

"It is also specifically understood and agreed that this insurance shall be considered as surplus insurance where any specific insurance exists on any of the property hereby insured, and this insurance shall not apply or contribute until the amount collectable from all such specific insurance shall have been exhausted; it being understood and agreed that under this, policy the assured is to be reimbursed to the extent of the difference between the amount collectable from such specific insurance, and the amount of the actual lose sustained by the assured not exceeding, however, the amount insured or in any event the limit of loss as above stipulated."

And the following:

"This Company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by, and expense of, removal from premises endangered by fire than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers covering such property, and the extent of the application of the insurance under this policy, or the contribution to be made by this Company in case of loss, may be provided for by agreement or condition written hereon, or attached, or appended hereto. "If fire occurs, the insured shall give immediate notice of any loss thereby, in writing to this company, protect the property from...