159 Mo. App. 692 | Mo. Ct. App. | 1911
This is a suit on a policy of fire insurance. Plaintiff recovered and (defendant prosecutes the appeal. The policy sued upon is in the amount of $1000 on a stock of merchandise owned by M. B. Caraway, the insured, who conducted a general store at Brookeland, Texas. The stock insured consisted of general merchandise valued at about $9000 and it was totally consumed by fire October 19, 1906. After the fire, defendant !s adjuster, Slaton, visited Brookeland, made an investigation, took proof of loss,
The facts touching the loss and the matter of removing goods from the store of Caraway to that of Burton are about the same as those set forth in connection with the opinion in Oehler, Trustee, v. Phoenix Insurance Company, decided today, and reference is made to that case for a more complete statement thereof. Though there is some additional evidence for defendant in the present record on this question, its principal witness, Mills, is more successfully contradicted and impeached here than there. Among other things in evidence in aid of plaintiff’s case here, is a written statement sworn to by Mills in which he contradicts his story given from the witness stand at the trial. There is an abundance of evidence in the record pro and con on the matter of removing goods from the store, and we are not prepared to say the verdict appears to be the result of passion and prejudice. On this question, we rule the same as in Oehler v. Phoenix Insurance Company, post.
The answer sets forth three affirmative defenses: First, a conspiracy between Caraway and Burton to cheat and defraud defendant by removing a large quantity of the goods insured from Caraway’s store to that of Burton prior to the fire, etc.; second, the
“The defendant charges Caraway with having-conspired with George Burton to remove goods and merchandise from Caraway’s store in Brookeland and with actually having removed from the Brookeland store such goods and merchandise and that this was done by Caraway with the purpose to cheat and swindle the defendant insurance company. The burden of proving these charges of fraud is on the defendant. And unless you believe that such charge has been established to your satisfaction by a preponderance of the evidence in this case, you can not find for the defendant upon such issue.”
It is argued this instruction singles out and unduly comments on one feature of the case to the exclusion of others in that it authorizes the jury to find for plaintiff on “such issue” of removing goods from the store unless defendant had sustained the burden of proof. We are not impressed with this argument in the least for the instruction is certainly a sound declaration of the law touching the burden of proof. Though the answer set forth three separate defenses, in the final analysis they all revert to and predicate upon the allegation that goods were removed from Caraway’s store
We have examined all of the arguments-advanced but see no reversible error in the record. The other arguments put forward for reversal are fully answered in respondent’s brief and they do not merit discussion in the opinion.
The judgment should be affirmed. It is so ordered.