| Mo. Ct. App. | Apr 4, 1904
This is an action on a policy of fire insurance on a lumber yard. The judgment in the trial court was for the plaintiff.
There are three points of objection to the judgment made by defendant. The first is that the court erred in the order of testimony which it permitted at the trial; that is to say, it ruled prejudicially to defendant in permitting evidence as to value of the lumber destroyed, to be introduced after the close of defendant’s case; it being stated that such evidence was not properly rebuttal. The rule is that the order of testimony is entrusted to the discretion of the trial court. And this' discretion may permit the plaintiff to introduce evidence after the close of defendant’s case which is not rebuttal. It is only in cases of apparent abuse of such discretion that an appellate court will interfere. Weller v. Railway, 164 Mo. 180" court="Mo." date_filed="1901-06-29" href="https://app.midpage.ai/document/weller-v-chicago-milwaukee--st-paul-railroad-8014035?utm_source=webapp" opinion_id="8014035">164 Mo. 180, 206; Burns v. Whelan, 52 Mo. 520" court="Mo." date_filed="1873-03-15" href="https://app.midpage.ai/document/burns-v-whelan-8004037?utm_source=webapp" opinion_id="8004037">52 Mo. 520.
The second point is partly the same as the first. It relates to the court’s action in permitting plaintiff to introduce evidence of the comparative amount of lumber carried in plaintiff’s yards before the fire and that of another lumber dealer. This was objected to.as not being rebuttal and as calling for a conclusion.
Plaintiff’s loss was total and the fire destroyed their books and inventories kept prior to December 1, 1901, which, was about three months before the fire, so that the matter of ascertaining what was the value of the property destroyed was difficult. We have already disposed of the objection that this evidence was not rebuttal; and we do not think that its calling for a conclusion was sufficiently harmful (if improper at all under the circumstances) as to cause a reversal of the judgment.
The only remaining point made is an objection to instruction number six given for plaintiff. That instruction declared that if defendant’s adjuster intentionally gave plaintiff to understand and believe that defendant denied all liability under the policy, the provisions of the policy as to appraisement of loss became inoperative. The instruction was proper. Vining v. Ins. Co., 89 Mo. App. 311" court="Mo. Ct. App." date_filed="1901-03-12" href="https://app.midpage.ai/document/vining-v-franklin-fire-insurance-8262734?utm_source=webapp" opinion_id="8262734">89 Mo. App. 311. Defendant does not, however, challenge it as a legal proposition but asserts that there was no evidence upon which it could be based. We find on examination of the abstract, in connection with the one furnished by plaintiff, that there was evidence to which the instruction can fairly apply. -,
On the whole record we discover nothing to justify us in interfering and the judgment is accordingly affirmed.