Howerton v. Iowa State Insurance, 105 Mo. App. 575

Howerton v. Iowa State Insurance

105 Mo. App. 575 | Mo. Ct. App. | 1904

REYBURN, J.

(after stating the facts as above).

1. Apart from and excepting statutory qualification presently discussed, the proposition may be justly designated as elementary that as a condition essential to recovery by plaintiffs upon the policy for destruction of their stock of merchandise, its value at the time of the loss should have been shown. The usual allegations of the valuation of this personalty and the resulting loss to plaintiffs were broadly charged in the petition, and the burden thus assumed of introducing proof in support of such averment devolved upon them. From the circumstances frequently attending a loss by fire, the legal rule adopted does not demand evidence conclusive in character or mathematical in certainty but merely the best obtainable under the conditions presented. The general rule is thus declared in an exhaustive treatise on the subject of insurance: ‘ ‘ The amount of an insurance policy is held to be no evidence of the value of the property destroyed, and it is therefore necessary for the insured to prove the extent of this loss. Testimony which is of slight importance may be received to show the value of goods if it is the best which *582can be produced and tends to show such value.” 4 Joyce, sec. 3769.

In Gustin v. Ins. Co., 164 Mo. 172, transferred from this court, the allegation of the value of the property was declared material, and that it should have been made, but as therein the parties both introduced proof of the value of the chattels insured, the omission was held remedied by the verdict. To same effect is Green v. Ins. Co., 69 Mo. App. 429; Story v. Ins. Co., 61 Mo. App. 534; Gustin v. Ins. Co., 90 Mo. App. 373.

2. The theory of the trial court, which is sought to be upheld by respondent, was that under the statutes of this State, the contract became a valued policy, and section 7979, R. S. 1899, is appealed to in support of such interpretation. This section, under title of an act relating to fire insurance and form of policies, was enacted by the thirty-eighth general assembly, approved March 18, 1895, and in the concluding clause declares that no company shall take a risk on any property in this State greater than three-fourths of the value of the property insured, and when taken its value shall not be questioned in any proceeding. This law was passed subsequent to the enactment of sections 7969 and 7970, which provided for valued policies on real estate, but expressly recited that they should have no application to personal property. It follows, that if the law enacted in 1895 is inconsistent with those sections, in so far as it is inconsistent with them, it takes precedence of them as an amendment of the law. The question then is: What does the word “property” as used in section 7979 mean? Does it mean only real property or personal property? Section 4160 of the statutes says the word “property” in a legislative act should be construed to mean real and personal property, unless such construction would be plainly repugnant to the intention of the Legislature or the context of the act. We see no reason why the word property in section-*5837979 should not be construed to embrace both real and personal property. If the Legislature had intended it should apply only to real property, it is fair to suppose some limiting proviso would have been enacted, as in sections 7969 and 7970. We, think, however, it would be perfectly competent to show in defense of an action on a policy for loss by fire, that personal property covered by the policy, whether it was a stock of merchandise, or something else, had been reduced by sales, or that its value had depreciated before the fire. Insurance companies are in the habit of inserting clauses in their policies, as was done in the present case, providing for inventories, invoices and books to be kept by the insured in a place safe from fire, in order that the value of the consumed property may be ascertained when it consists of a stock of merchandise. It would be possible, therefore, to arrive at an approximately correct estimate of the loss in most cases. Be that as it may, the statute seems to us to be plainly susceptible of no other construction than that it embraces both personal and real property. This construction has been expressly put on it by the Kansas City Court of Appeals in a decision which is the only one so far that has taken note of the statute in question. Gibson v. Ins. Co., 82 Mo. App. 515. In none of the other cases was this statute called to the attention of the court or passed on.

3. The further objection is encountered that the conditions of the policy, respecting the making of an invoice and the keeping of books as pleaded and set forth in the paragraphs of the answer, were violated and not complied with. Applying the controlling rule of construction of a policy of insurance, that it must in all cases be liberally interpreted in favor of the insured (1 May, Insurance (4 Ed.), sections 174-175), by the so-called rider, which constituted an integral part of the policy (Crigler v. Ins. Co., 49 Mo. App. 11), the preceding provision governing the taking of inventory of the *584stock was modified, the period within which it might be taken was extended so as to permit the preparation of the invoice during the year succeeding the issuance of the policy, which had not terminated at the time of the fire. McCollum v. Ins. Co., 61 Mo. App. 352. The compliance by the assured with the requirements to keep books on account correctly detailing all purchases and sales, and to preserve them in some place secure against fire in another building; during the hours the store was not open for business, and to produce them on demand thereof, constituted an issue joined, and an instruction submitting this question to the jury should have been given, but the instructions asked upon this branch of the case were properly refused, as they contemplated the taking of an inventory as well, the time limit for the preparation of which, as above demonstrated, was unexpired at the date of the loss. Burnham, etc., v. Ins. Co., 63 Mo. App. 85; Burnett v. Ins. Co., 68 Mo. App. 343; Gannon v. Gas Light Co., 145 Mo. 502; Mineral Land Co. v. Ross, 135 Mo. 101; Wolff v. Campbell, 110 Mo. 114.

4. The instructions previously set forth and given by the court encroached upon the domain of the jury and should not have been given. Corbitt v. Mooney, 84 Mo. App. 645.

For the errors indicated the judgment is reversed and the cause remanded.

Bland, P. J., and Goode, J., concur.