88 Mo. App. 392 | Mo. Ct. App. | 1901
The court, from an .inspection of form No. 4, attached to the policy ánd made a part thereof, ‘found that it had been mutilated and a part of it was gone. - On this finding the court fell into error in ruling’ that'the presumption is, that the severance or mutilation was made at or before the delivery of the policy. The application for the policy agreed to the iron-safe clause. ‘This was not found in the policy in its mutilated form, nor could the goods insured be located by anything contained in the policy. The very fact that a part of the form had been clipped or cut off by a sharp instrument was a suspicious circumstance. Hays v. Bayliss, 82 Mo. 209; State v. Chamberlain, 89 Mo. 129; Sweitzer v. Allen Banking Co., 16 Mo. App. 1; Drosten v. Mueller, 103 Mo. 624. And the' onus was on the respondent to disprove or explain the spoliation. Stilwell v. Patton, 108 Mo. 352. By its ruling the court deprived the appellant of a defense which it duly pleaded and prima facie made by the production of the policy, which as the court found had been spoliated.' As the judgment must be reversed for this error, it is unnecessary to discuss the refused instructions or the ruling of the court on motion for new trial.
Judgment reversed and cause remanded.
