| Mo. Ct. App. | Jul 6, 1914
In this suit on a fire insurance policy to recover the loss of a small grocery stock destroyed by fire, the jury found for the insurance company. Such being the verdict, we accept and state the facts from that standpoint although many of them were not agreed to but were contested at the trial.
Plaintiffs, Bertha Johnson and Rose Anderman,. daughters of one Leo Anderman, started a small grocery store at 8229 Independence road, Kansas City. The father was in full charge and control of same as apparent owner. He rented the building for the store and passed himself off to the owner of the building and possibly others in the neighborhood as “B. Johnson.” Introducing himself by that name to defendant’s insurance agent at Independence he obtained the issuance of the policy sued on to “B. Johnson & Go.,” the defendant thinking that it was issuing.it tc him and that he was B. Johnson, the insured. Eight days after the issuance of the policy the property burned. After the fire, defendant discovered that Anderman was not B. Johnson but was Leo Anderman. who had held former policies in the company and who had had at least eight and possibly more different successive fires in property of which he was in possession and control either as owner or as agent for his wife.
There was ample evidence from which the jury could find that Leo Anderman fraudulently represented himself to be B. Johnson, owner and in charge of the property and the one to whom the insurance was issued. He applied for it in person and gave his name as B. Johnson. Defendant and its agent believed he was B. Johnson and knew nothing to the contrary and relied upon that representation. Anderman not only passed himself off to defendant as B. Johnson but to others as well and there was nothing to put defendant upon inquiry or give it notice that he was not the man he claimed to be. The evidence also showed that Anderman had had the fires charged by defendant and that on account of this bad reputation for fires, defendant would not have issued the policy had it known that the man to whom it was issued and who would have charge of the property was Leo Anderman.
With reference to the complaint that the trial court erroneously permitted witnesses who knew very little about groceries to testify as to the size and value of the stock, there is this to be said: The objection is not based on the ground that the witnesses were not qualified to testify on such subjects, but on the ground that under section 7030, Revised Statutes 1909 the policy was a valued policy and fixed the value of the stock as of the day it was delivered, and that, therefore, no evidence on that subject was admissible except to show depreciation, decay or salvage. The evidence, if offered for the purpose of reducing the amount of insurance recoverable, was inadmissible. If the jury had found for plaintiff, but for a reduced amount or for an inadequate sum, plaintiff might well complain. But the charge made by defendant was that the policy was fraudulently obtained, that it had no legal existence because of that fact, and the jury has found defendant’s claim to be true. Plaintiffs were, therefore, not entitled to anything. The admission of the evidence was not reversible error since it did not reduce a verdict or lessen the amount of recovery. We have carefully read the record, and the evidence from which the jury could otherwise find that the policy was ob-
Defendant’s instruction No. 4 was not complained of in the motion for new trial, and if not, then it is-not before us. But on the theory that the apparent omission may be a mere typographical error, it is well to state that the instruction is not erroneous since it does not refer to values but to the extent of the loss whether total or partial. Plaintiffs still had the burden of proof even if no evidence but theirs was offered.
It is urged that the evidence of the many fires-occurring in the business career and experience of Leo Anderman was inadmissible and highly prejudicial. The only evidence brought out on this subject was in the cross-examination of Anderman himself. It must be borne in mind that the fraud charged in this case was in the very procurement of the policy, in. Anderman’s passing himself off as B. Johnson well knowing that if defendant knew his name was not Johnson but Anderman the policy would not be issued. Neither did defendant charge that the property had been wilfully and intentionally burned. The charge was that the policy was void — i. e. non existent as a valid contract — because it was fraudulently obtained. One of the issues under this charge was, did Anderman fraud
The jury found against plaintiffs upon that issue. The record is without substantial error and the evidence is abundant to sustain the verdict. It must, therefore, be respected and permitted to stand. The judgment is affirmed.