Woods v. Atlantic Mut. Ins. Co.

• Decision Date: 31 March 1872
• Parties: ROBERT K. WOODS, ASSIGNEE OF EDWARD P. TESSON, Appellant v. ATLANTIC MUTUAL INSURANCE COMPANY, Respondent.
• Court: Missouri Supreme Court

50 Mo. 112

ROBERT K. WOODS, ASSIGNEE OF EDWARD P. TESSON, Appellant

v.ATLANTIC MUTUAL INSURANCE COMPANY, Respondent.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

Glover and Faust, for appellant.

Britton A. Hill, with Knox, for respondent.

It is the province of the court to determine upon the legal effect of testimony; and an instruction that, admitting the testimony to be true, the plaintiff cannot recover, is in the nature of a demurrer to evidence, and may be given. (Harris v. Woody, 9 Mo. 112; Lee v. David, 11 Mo. 114, and cases above cited.)

ADAMS, Judge, delivered the opinion of the court.

This was an action on a policy of insurance issued by the defendant to Edward P. Tesson, who originally brought the suit, and becoming bankrupt, it was afterwards prosecuted in the name of the plaintiff as assignee in bankruptcy. It was an insurance against fire on a distillery building and machinery. The description of the building embodied in the policy was: “his three or four story distillery building and machinery in the same, not running, no fire in or about, situated entirely detached, on the bank of the Mackinaw river, in the town of Forneyville, Woodford county, Illinois, valued at thirty-two thousand dollars.” The description in the application for insurance was substantially the same, with this addition, “gable end is frame.”

The defense was that the policy was avoided by breach of warranty in this: that by the application and policy, Tesson warranted that the premises insured were built of the materials stated in the policy and application, and that they were situated entirely detached, when in truth the warranty was false, in this: that the distillery building was not built of brick, but that the third story was built entirely of wood, and a portion of the distillery building, one story high, sixty feet long and thirty feet wide, was built entirely of wood; and that the boilers for the distillery were under a shed roof outside the wall of the distillery; and as a fourth defense, the same matter was set up as a fraudulent concealment and misrepresentation by the insured in not disclosing the entire description of the premises as they really existed.

The proof conduced to show that Tesson owned but one distillery and that was the one in question; that at the time the insurance was effected, Tesson, who was in the vicinity of the premises, acquired the distillery by foreclosure of mortgage, and immediately telegraphed to his agent in St. Louis to insure it; that the agent went to the office of defendant and made known his business, and the agent of defendant drew up the application, which the agent of Tesson signed; that Tesson's agent stated at the time that he did not know that this description was correct, but that he had plats of it at his office and would go and fetch them, and if the description was inaccurate that it might be made perfect; that he did bring the plats and left them with defendant's agent. These plats were put in evidence, and one of the plats had written underneath, “the first and second stories are of brick;” and the evidence conduced to show that the distillery, as a whole, stood detached from any other buildings of adjoining proprietors; that the main part of the building was three stories high, two stories of brick and the third story of wood; that there were boilers set in brick outside of the buildings, covered with a shed roof on posts, and...