Yellin v. National Surety Co.

• Decision Date: 06 April 1926
• Docket Number: No. 18553.,18553.
• Citation: 282 S.W. 520
• Parties: YELLIN et al. v. NATIONAL SURETY CO. OF NEW YORK.
• Court: Missouri Court of Appeals

282 S.W. 520

YELLIN et al. v. NATIONAL SURETY CO. OF NEW YORK.

No. 18553.

St. Louis Court of Appeals. Missouri.

April 6, 1926.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by H. Yellin and another, co-partners doing business under the style and firm name of the Liberty Paper Company, against the National Surety Company of New York. Judgment for defendant, and plaintiffs appeal. Affirmed.

Joseph Boxerman, of St. Louis, for appellants.

Fordyce, Holliday & White and W. R. Mayne, all of St. Louis, for respondent.

SUTTON, C.

This is an action upon a policy of insurance issued by defendant to the plaintiffs on October 19, 1921, whereby the defendant agreed to indemnify the plaintiffs in the sum of $2,000 for the term of 12 months for lass by robbery of money, bullion, postage and revenue stamps, securities, express, postal, and bank money orders, bonds debentures, checks, drafts, bills of exchange, acceptances, promissory notes, certificates of deposit, certificates of stock, warehouse receipts, bills of lading, watches, jewelry, and other merchandise. The cause was tried to a jury, there was a verdict and judgment in favor of defendant, and plaintiffs appeal.

The petition alleges the issuance of the policy, and a loss by robbery of $2,000 in lawful money on January 16, 1922, and prays judgment therefor. The answer admits the issuance of the policy, and denies each and every other allegation in the petition contained. It further charges —

"that whatever loss, if any, was sustained by plaintiffs was caused by their negligence, in that the policy provides that defendant shall not be liable unless plaintiffs have taken reasonable precautions to safeguard the property insured, and that plaintiffs negligently and carelessly failed to properly safeguard and use reasonable precautions in protecting the property, and that on account of said negligence and carelessness plaintiffs are not entitled to recover."

There was evidence tending to prove the allegations of the petition. There was also evidence tending to support the special defense pleaded in the answer.

The plaintiffs requested the court to give to the jury instructions advising them that, unless the defendant had proved by the preponderance or greater weight of the evidence that the plaintiffs failed to use reasonable precautions to safeguard the property covered by the policy, and that the loss sustained by plaintiffs was caused by their own negligence or carelessness, then their verdict should be for plaintiffs and against the defendant. The court refused to give these instructions, presumably on the ground that they assumed that the robbery sued for had occurred, and directed a verdict for plaintiffs without requiring the jury to find as a fact that such robbery had occurred. Thereupon the court gave to the jury the following instructions:

"No. 2. The burden of proof is on the plaintiffs to establish by the preponderance or greater weight of the evidence the facts necessary to a verdict in their favor. However, the burden of proof is on the defendant to establish by the preponderance or greater weight of the evidence that plaintiffs' loss, if any, was caused by their own negligence and carelessness in failing to use reasonable precaution to safeguard the property covered by said policy of insurance.

"No. 3. The court instructs the jury that if you find and believe from the evidence that no robbery occurred to plaintiffs on the 16th day of January, 1922, between the hours of 7 a. m. and 7 p. m., then in that event plaintiffs are not entitled to recover, and your verdict must be for the defendant.

"No. 4. The court instructs the jury that if you find and believe from the evidence that the plaintiffs did not take reasonable precautions to safeguard the property of plaintiffs, and if you find and believe from the evidence that by reason of the plaintiffs' failure to take reasonable precautions to safeguard their property the loss occurred, if any, then in that event plaintiffs are not entitled to recover, and your verdict must be in favor of the defendant."

The plaintiff assign error upon the giving of instruction No. 4, on the ground that the law foes not exempt the defendant from liability for the negligence of the plaintiff's unless such negligence was willful or fraudulent. The policy in suit provides as follows:

"The company shall not be liable for any loss * * * unless the assured has taken all reasonable precautions to safeguard the property."

We see no reason why this provision of...