67 Mo. App. 544 | Mo. Ct. App. | 1896
This is an action on an insurance policy issued by the appellant to the respondent on his dwelling house and furniture, for loss by fire of said property. The petition is in the usual form. The answer contains, first, a general denial, and then sets up as a special defense misrepresentations and fraud, and a failure to comply with the terms of the policy in
The evidence tends to show that respondent’s house and furniture were destroyed by fire on the twenty-eighth day of January, 1895, and on the next day James H. Huffstetter, the appellant’s local agent, was at the plaintiff’s place of residence and prepared a notice for the plaintiff to be sent to the defendant informing defendant of the loss by fire of the said prop-, erty, and on the same day the plaintiff sent said notice by mail to defendant at its home office in Freeport, Illinois.
On the nineteenth of Feburary, 1895, the plaintiff went before E. A. Brown, a notary public, and caused two papers to be made out at the same time exactly alike, of proof of loss. One paper marked “a true’ copy” he retained, the other, on the next day, February 20, he sent by registered letter to defendant, at its home office, and in a few days thereafter received from the postmaster of Freeport, Illinois, receipt for same. The paper sent to defendant is mentioned in the evidence as the “original” and the one retained by plaintiff the “copy” of proof of loss.
Upon the trial, plaintiff offered in evidence the paper so retained by him and the defendant objected to it on the ground that it was a copy and not the original instrument and that no notice had been served upon defendant to produce the original paper. The court, after inquiring of plaintiff as to when and where the two papers were made out, and if they were compared, to see if they were exactly alike, overruled the defendant’s objection and admitted the paper in evidence.
Prior to and at the time of taking out said insur
The facts shown by the evidence being substantially as already stated, the defendant’s demurrer to the evidence was properly overruled. The plaintiff made out a prima facie case entitling him to go to the jury.
The testimony of the plaintiff that he gave the preliminary notice required by the terms of the policy was sufficient to justify the finding of that issue in favor of the plaintiff.
The defendant strenuously objects that the trial court erred in permitting the copy of the proof of loss which the plaintiff mailed to the defendant to be read
The issue as to whether there was a breach of the warranty in respect to incumbrances on the insured premises was fairly submitted to the jury under the evidence and appropriate instructions. It is true the evidence tending to show the amount of the incumbrance at the time of the application for the policy is somewhat conflicting, yet it is, we think, ample to authorize the finding of that issue for plaintiff.
So far as we are able to discover, no error prejudicial to the defendant was committed by the court below in the trial of the cause, so that it results that the judgment must be'affirmed.