205 Mo. 294 | Mo. | 1907
In the St. Louis Court of Appeals, Bland, P. J., wrote, and, with the concurrence of his learned brethren on that bench, there was handed down in this case, the following opinion (119 Mo. App. 308):
“The facts as developed at the trial are correctly set out in appellant’s statement as follows:
“ ‘On June 2,1903, appellant issued to respondents its policy of insurance for one thousand dollars, covering the property described in said policy as follows: “One thousand dollars on their stock of supplies consisting of hay, grain and feed, scrapers, wagons, plows and other tools and supplies kept in their warehouse; all while contained in the one and one-half story brick building with composition roof situate on lots No. 14 and 15, block No. 3, street Nos. 143-145 West Olive street, Aurora, Missouri.”
“ ‘The respondents were railroad contractors engaged in grading a railroad some miles from Aurora. They used dynamite in blasting rock encountered in their work. They kept a powder magazine about a mile arid a half or two miles from the city of Aurora, where they usually kept their powder and dynamite. They did not ordinarily keep powder or dynamite in the building described in the policy, but the building
“ One Woodfill was appellant’s agent at Aurora, and countersigned the policy. At the time the policy was issued no powder or explosives of any kind were stored or kept in the building, and up to that time, and until the time hereinafter mentioned, nothing of the kind had been kept or stored in said building. On the contrary, respondents had kept their explosives, except such as were in use along the line of work, in a powder magazine constructed and located for that express purpose. All merchants doing business in Aurora, who handled powder, also had powder magazinés located out of the city, and it was not usual or customary for merchants in Aurora to keep or allow about their business houses in the city any explosives except in small quantities. When the policy was applied for and issued, no request was made for permission to store or keep' explosives in the building, and, as before stated, no explosives were there at that time or at any time prior thereto.
“ ‘On September 19, 1903, a fire occurred which destroyed the building and a portion of its contents. About a week before the fire occurred Woodfill went away from Aurora and did not return until after the fire. Up to the time he left nothing had been said
“ ‘All the explosives above mentioned were in the building at the time of the fire. The appellant had no notice of such fact, nor did its agent, because he went away from the city before the dynamite was in the building and did not return until after the fire.
“ ‘When the fire occurred, it does not appear that any one representing respondents was about the premises. When the alarm was given the fire department went to the scene and began trying to extinguish the fire. It soon became noised around that there was powder in the building. Whereupon the populace, usually attendant upon fires, withdrew to a safer place, and the firemen began to explore for exploders, etc., and finally located the dynamite in a room which was so located that they had to chop with their axes their way to- the powder, and through the heroism of the firemen who risked their lives in the work, the dynamite and other explosives were removed in time to save an explosion, which would probably have resulted in loss of life as well as great damage to property in the city.
“‘The policy contains the following provisions:
‘ ‘ This entire policy, unless . otherwise provided by
“ ‘If the appellant had known that the dynamite and other explosives were put, kept or allowed in the building it would have cancelled the policy as quickly as possible.’
“At the close of all the evidence the defendants moved the court to instruct the jury that the plaintiffs could not recover. The court refused to give this instruction and gave instructions so declaring the law to the jury that it was so enabled to, and did, bring in a verdict for the plaintiffs for the full amount of the policy. A motion for a new trial proving of no avail, defendant appealed.
“1. That the storage of powder and other explosives mentioned in answer and-the evidence was a violation of the terms of the policy, does not admit of a doubt. The agent of appellant, who signed and delivered the policy to the plaintiffs, tried very hard to swear that he knew powder was kept in the building when he issued the policy, but, when he was pinned down to what he actually knew, it was shown that he had no such knowledge and the evidence shows that it was- not usual to keep powder in the building 'described in the policy of insurance. Because the fire did not originate from the explosives temporarily stored in the building, it is contended by respondents that they did not contribute to the loss and for this reason the policy is protected by section 7973, Revised Statutes 1899, which provides — in substance — that no condition in any policy of insurance shall be taken or construed
“The construction the respondents would have us put upon this section is that no condition of a policy of insurance shall be construed as other than a mere representation unless it contributed to the loss. Such construction would be a perversion of both the language and meaning of the statute.
“In Dolan v. Ins. Co., 88 Mo. App. 1. c. 672, Judge Ellison, of the Kansas City Court of Appeals, in respect to this section said: ‘ This statute does not avoid all warranties, but only such as are not material to the risk. All matters warranted which are material to the risk are left just as they were before the statute. ’ And cited in support of this construction the construction of similar statutes in March v. Ins. Co., 186 Pa. St. 629, and Brown v. Ins. Co., 172 Mass. 498.
“The construction contended for by the plaintiffs would deny to fire insurance companies the right to limit the risk against which they would issue policies of insurance. That the storage of the explosives in the building by plaintiffs increased the risk and was a clear violation of the express provisions of the contract of insurance, admits of no doubt. By this, act the policy was forfeited and the plaintiffs should have been nonsuited, 'unless there was a waiver of the forfeiture.
* ‘There is nothing in the evidence tending to show any fact or circumstance by which a waiver can be inferred. No agent or officer of the company knew or had been informed of the storage of the explosives until after the fire.
“Plaintiffs refer to Greenleaf v. Ins. Co., 37 Mo. 25, and Obermeyer v. Ins. Co., 43 Mo. 573, as holding that defendant should be held liable on the policy, notwithstanding the violation of the contract by them. These cases, in effect, decide that where a fire or marine policy contains a provision for forfeiture on the
“2. Plaintiffs refer to a very nice point made and sustained by the Supreme .Court of South Carolina in the case of Leggett v. Ins. Co., 10 Rich. Law 202. The policy provided that the keeping of gunpowder for sale, or in storage, upon or in the premises insured, should render the policy void. The insurance was upon a ■stock of goods and merchandise contained in applicant’s store, a part of which consisted of gunpowder. But it was contended and held that the word ‘premises’ referred to buildings insured and as there were no buildings insured, the gunpowder was not kept upon or in the premises insured within the meaning of the stipulation. The Leggett case is distinguishable from the one in hand. In the South Carolina policy the clause construed reads as follows: ‘ The keeping of gunpowder for sale, or in storage, upon or in the premises insured,’ etc. The goods insured in the case in hand, were insured while located and contained in a one and one-half story brick building, with composition roof, situated on lots 14 and 15, block 15, street No. 143-145 West Olive street, Aurora, Missouri. That part of the
“3. Plaintiffs further contend that the case was tried upon a theory adopted by the defendant and it is thereby estopped to raise an objection to the action of the court in overruling its demurrer to the evidence and submitting the issues to the jury. It is a well-settled rule of practice in this State that where parties try a cause upon a certain theory, neither party can have the case considered on another and different theory in the appellate court. [Mirrielees v. Railroad, 163 Mo. 1. c. 486, and cases cited.] But where, as was done in this case, the defendant, at the close of all the evidence, of-.
“There is no substantial evidence in the record in support of the verdict; on the contrary, the evidence clearly shows beyond peradventure that the policy was inoperative at the time of the fire and the demurrer to the evidence should have been given.
‘ ‘ Judgment reversed. ’ ’
Thereupon' Judge Bland was of the further opinion that the third paragraph of the opinion rendered is opposed to the opinion of the Kansas City Court of Appeals in the case of Frankenthal v. Assurance Co., 76 Mo. App. 15, and the cause-was certified here for determination in accordance with section 6 of the amendment made in 1884 to article 6 of the Constitution.
I. The proposition in the third paragraph is to the effect that where a defendant challenges plaintiff’s theory of the sufficiency of all the evidence to make a case for plaintiff by submitting an instruction in the nature of a demurrer to the evidence at the close of the case, such defendant does not estop himself or waive his right on appeal to pursue his exception to the court’s ruling on such demurrer by asking and receiving instructions the converse of those given for plaintiff. Is that proposition good law? Eminently so, because:
(a) In construing rules of appellate practico in accordance with right reason regard must be had to the difference between the position occupied by a de
In commenting upon this question, Gantt, J., in Cochran v. Railroad, 113 Mo. 1. c. 366, said: “It must be remembered that a defendant occupies a different attitude from bis adversary, tbe plaintiff. Tbe plaintiff brings tbe action. If tbe ruling is adverse, be may take ú nonsuit. Not so with the defendant. He is in court without bis consent. Tbe court may make any number of rulings that be may deem erroneous, but be cannot abandon tbe case; be is in court and must remain till tbe cause is finished. He has a right to tender as many defenses as be has. If tbe court erroneously deny him one, be must avail himself as best be can of those remaining. He, however, advises tbe court and bis adversary of his claim, and if be submits, as be is bound to do, to tbe ruling of tbe court, and tries bis case in accordance with its judgment, on what principle is be estopped from complaining of tbe action of tbe trial court and bis adversary in forcing him to fight tbe battle upon ground selected by them and at a great disadvantage to him1? We see no element of estoppel in such a case.”
Tbq reasoning in Barker v. Railroad, 126 Mo. 1. c.
So, Brace, P. J., in Donnell v. Wright, 147 Mo. 1. c. 648, said: “It is contended, however, that the plaintiff waived this bar by offering evidence and asking instructions on the issue submitted to the jury. Had he voluntarily done so, this might have been the case, but as he was constrained to this course by the adverse rulings of the court he is not precluded from insisting on the error.”
And in Bailey v. Kansas City, 189 Mo. 1. c. 513, it was said: “It is further suggested by respondent that appellant cannot take advantage of said error, because, after the introduction of the evidence complained of, it proceeded on its own account to introduce evidence of the subsequent repairs and reconstruction of the sidewalk. Of this suggestion suffice it to say that the participation in error by inviting it waives the right of subsequent complaint by the losing party on appeal. But the reason of the rule ought not to permit its application to a case where the losing party, as here, does not' invite the error, but yields under protest to the theory of the trial court and thereafter tries, as best he may, to ameliorate his plight by administering an antidote
The reasoning of the cases cited by Bland, P. J., in paragraph three is in accord with that of the foregoing cases and sustains the proposition in that paragraph.
Indeed, it was a favorite notion of writers on sprightlier themes than the law, commencing, maybe, with Aristophanes and coming on down through a line of wits, including Butler, Scarron and Goldsmith, that:
“For he who fights and runs away,
May live to fight another day;
But he who is in battle slain,
Can never rise and fight again.”
Transmitting that notion into allowable law phrase, it might read thus: He who fights and runs away from a position taken on hi's answer and at the trial, because driven away by the court, may live to fight another day on appeal in the same position, if he marked the spot by an exception,- but he wlm is in battle slain — that is, who selects his place voluntarily, and who legally (speaking in figure) dies in his tracks on his selected theory, can fight no more on appeal, because: (as once a mortgage, always a mortgage, so) once fairly dead, always dead.
(b) The rule respondent invokes is the sensible common-place of the law that a case must be heard on appeal on the same theory it was tried below. That rule is constantly applied in many ways. But care must be exercised to put one’s finger on the theory upon which the case was tried. What if there be two theories. May one be taken and the other left? If a plaintiff and defendant jointly select a theory and try their case on that theory, neither may stray from it on appeal. If either litigant tole the court into error, the one to blame may not complain. So, if plaintiff and defendant jointly tole the trial court into error, neither may
(c) It was said by Justice White in Hanson v. Boyd, 161 U. S. 1. c. 402, that: “There was no motion made at the close of the evidence to direct a verdict, and both parties therefore agreed to the submission of the issues of fact to the consideration of the jury. In the absence of such a request we must assume that there was sufficient evidence to warrant the court in permitting the jury to draw the inferences proper to be deduced from the evidence-in the case.”
In Hartford Ins. Co. v. Unsell, 144 U. S. 1. c. 451, it was said by Justice Hartan: “The only ground for serious doubt in respect to the case is, whether the evidence was sufficient in any view of it to sustain the theory that the defendant had by its course of business with the assured led him to believe, and that he, in good faith, believed, that the company waived, as to him, a strict performance of the conditions as to the payment of dues or premiums, and whether' if the court had given a peremptory instruction to find for the defendant, the verdict and judgment would have
It would seem from the foregoing that the highest court in the land looks upon a failure of appellant to ask a peremptory instruction as equivalent to assuming that the case was a proper one for the jury on the facts —a theory he is bound by on appeal. If this be good law, how can it also be good law that if appellant does ask a peremptory instruction and it is disallowed, he waives his right to challenge the ruling by asking the converse of respondent’s instructions and thus, maybe, winning out on respondent’s own theory? To so hold would be the same as to say that appellant waived his point by asking no peremptory instruction and (mirabile dñctu) waived it by asking one. That is, he can stand on neither foot, and the last state of that man is worse than the first.
As we understand Frankenthal v. Assurance Co., 76 Mo. App. 15, the doctrine of that case is not necessarily in conflict with paragraph three of the opinion.. In another case (Hopkins v. Modern Woodmen of America, 94 Mo. App. 402) the Kansas City Court of Appeals came nearer to a decision contrary to the third paragraph of Judge Bland’s opinion than in the Frankenthal case. [See p. 409.] In that case there was a peremptory instruction asked and it was held that a right to a review of the ruling, nisi, on that instruction, under the record before the court, was waived by asking other instructions. In a still later case (Eberly v. Railroad, 96 Mo. App. 1. c. 367, et seq.) that court had under exposition the same question. It would seem from the ruling in the Eberly case that the Hop
Moreover, the record in this case does not specify the order in which the instructions were asked. Learned counsel are supposed to know the law — are presumed to be skilled in the rules of logical order and sequence and to do their duty. Hence, in the absence of an abstract specifying the order in which instructions were asked, as here, it would be presumed they were asked in due order and sequence.
Respondents and appellant rebrief the case for this court and respondents urge the view that appellant waived its mandatory instruction when it participated
II. We have gone over the record and considered the contentions pro and con. We find the statement adopted by Bland, P. J., from appellant’s brief to be lively, but fair. We find the doctrine announced by him sound. It would be a startling proposition if tons of dynamite and other forms of explosives would not be said to be “material” to an insurance “risk.” No judge would have to take the opinion of twelve men on that point. There was no waiver shown by the evidence, and there was nothing to indicate that appellant was so foolish as to undertake to insure powder against fire under the' head of “supplies.” Plaintiffs grossly violated the ordinances of Aurora and the terms of the policy when they subjected the town to the hazard of destruction and when they, in a most inflamed way, subjected the defendant to the hazard of loss.
It would be improper, aye, impossible, to compress within the limits of a judicial formula what would be material to a risk under any and all circumstances. Danger lurks in generalization. It is well enough to decide the case at bar on the record before us; and on this view we have no hesitancy in' agreeing with the conclusion of the St. Louis Court of Appeals, that, as a matter of law, plaintiffs avoided their policy.
The judgment of the circuit court is accordingly reversed.
