159 Mo. App. 696 | 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 $2000 on a stock of general merchandise owned by the insured, M. B. Caraway, and $350 on a frame store building in which he owned a one-half interest. The building and stock were situate at Brookeland in Texas, where Caraway conducted a general store, and were totally consumed by fire. Besides the policy in suit, Caraway carried other insurance on the stock to the extent of $3000, or a total insurance on merchandise of $5000. At the time of the fire, the insured was indebted to a number of wholesale houses and others and therefore assigned this and other policies to plaintiff as trustee for his creditors, and the suit is prosecuted by plaintiff as such trustee for the benefit of the creditors of the insured, Caraway.
Though it is set forth in several different forms in the answer, the defense relied upon is, in substance, that the insured, Caraway, conspiring and co-operat
A few days after the fire occurred, one Slaton, adjuster for defendant and all other companies interested, went to Brookeland and devoted a portion of two days to investigating the loss, but did not settle it for the reason that Caraway, the insured, was absent from home. The adjuster notified Caraway to produce his books, papers, etc., and meet him at a later date at Dallas with a view to a settlement for all of the companies. In obedience to this request, Caraway, in company with Burton, a merchant of Carthage, subsequently charged as his co-conspirator, repaired to Dallas and went over the matter of the fire and the extent of the loss with Slaton, the adjuster, in his office. At this meeting, Caraway produced his books, bills and invoices and after the adjuster had devoted several hours to looking through the same, he submitted a proposition to the effect that the compames, including defendant, would pay the full amount of the several policies on merchandise, provided Caraway would surrender his claim against the present defendant for the $350 insurance on the building. It appeared that Caraway owned only one-half interest in the building and tMs fact had not been communicated to the company when the policy was issued. Defendant’s policy stipulated that unless the insured was the sole and unconditional owner, the item of insurance should be void. Caraway took this proposition under advisement and returned home. A few days later, Burton wrote the adjuster that Caraway had learned he could not collect the $350 on the building and had therefore concluded to forego the same and accept the proposition so made on behalf of all of the companies for payment of the full amount insured on merchandise.
At the trial, the facts above stated were shown, and defendant’s liability, except for the fraud set forth in the answer, was either proved or admitted, while it was admitted by plaintiff that defendant had duly tendered a return of the premium paid on the policy. To sustain its several affirmative defenses, defendant introduced evidence tending to prove that Caraway was a young man without means who had opened a store at Brookeland in August before the fire, which occurred on October 19, 1906, and that Burton had aided him to purchase goods by recommending him to the wholesale houses, etc. It seems that Caraway and Burton were old friends, related by marriage and had been intimate for many years. Burton was the elder and formerly had been associated with Caraway’s father in business. Caraway had started a store at a small town in Texas not long before his venture at Brookeland, and upon it appearing that
For plaintiff, it is shown by the testimony of Caraway and Burton and others that the only goods Mills hauled were three loads from Burton’s store at Carthage to Caraway’s at Brookeland and that Burton assisted Mills in purchasing the wagon and team for this purpose. These goods are said to be those which Burton furnished Caraway in lieu of those invoiced to him the year before and amounted to something over $2500. Furthermore, the salesman and saleslady employed in Burton’s store say that Mills or no one else hauled or delivered any goods to Burton’s store during’ nights from any place, and a number of the citizens of Brookeland, who were patrons of Caraway’s store, say that his stock of goods was not diminished during this period hut on the contrary was constantly being increased by the receipt of new goods. The witness, Mills, is shown to have made 'contradictory statements touching the matter, and admitted on the witness stand to have made a sworn statement, though not in evidence, contrary to his testimony given
It is argued the verdict should be set aside for the reason it is contrary to the overwhelming weight of the evidence and suggests passion and prejudice on the part of the jury, but we are not inclined to accede to this view. This argument proceeds as though the several farmers along the road corroborated Mills throughout, when they did not’. There can be no doubt that the testimony referred to supported him to the extent that he was seen hauling several loads, which seemed to be merchandise in boxes and trunks, but no one knows from whence these loads came or whither they went, and, indeed, no one could say positively that the wagon was loaded with merchandise. Then, too, it may be these loads of goods were those en route from Burton’s store to Caraway’s, as is suggested by the proof for plaintiff. It is true s'ome of the witnesses say Mills’ wagon was loaded when seen going north towards Carthage, but when the uncertainty of memory and the doubtful faculty of persons not interested for accurate observation are considered, wé believe this matter to be one peculiarly for the jury. It is true there is much of this testimony and it is worthy of candid consideration, but, as before said, it is all more or less indefinite and vague in that it omits to show positively that Mills was hauling merchandise from Caraway’s store to Burton’s. On this, the vital question, Mills’ word stands alone against not only, that of Caraway and Burton but Burton’s salesman and saleslady as well; for, obviously, no such amount of new goods could have come into Burton’s store without his employees, who are shown to have been entirely familiar with the stock, ascertaining the fact.
The policy stipulates, in substance, the insurance should be void unless the insured kept a full, true and complete set of books and invoices showing the amount of goods received and those disposed of in any manner together with all sales for either cash or credit, etc. Besides the fraud and conspiracy above referred to, which is relied upon in a general way in defense, the answer set forth this covenant in respect to books and invoices and pleaded its breach and the consequent forfeiture of the insurance for the reason the insured had omitted to show, in his books, the eight wagon-loads of goods alleged to have been delivered to Burton as above stated. Touching this defense and the waivqr of the terms of the policy respecting it, the court instructed for plaintiff as follows:
*707 ‘ ‘ Even thongli you may believe from the evidence that Caraway did not take or keep such an inventory or such a set of books, as the policy called for, yet, if you find from the evidence that W. D. Slaton was the adjuster of the defendant who was employed by the defendant insurance company to look into, examine and adjust this loss, and that he had Caraway meet him in Dallas for the purpose of examining the facts about the fire, and there he and Caraway went over the facts of his loss, if any he suffered by said fire, and that Caraway then 'gave Slaton such books, bills and inventories as he' in fact did keep and did have relating to this stock of goods and his loss, if any, which he had suffered by said fire, and that Slaton did not object to same, but told Caraway that they were all right, and that if he would throw off the $350' item on the house, he, Caraway, should go home and that he, Slaton, would make out and send him such proofs of loss as the company would desire, and that he, Caraway, should fill them up, and sign and swqar to the same and return them to him, Slaton; and thereafter Slaton did send Caraway such blank proofs to be executed and returned, and that Caraway did comply with Slaton’s request in these particulars, and did throw off the $350 insurance on the house, and did return the signed and executed proofs of loss to Slaton, and that the company has ever since kept the proofs so furnished Slaton by Caraway, then you may find that the company waived its right to declare the policy forfeited for these reasons, and upon this issue, you may find in favor of the plaintiff.”
It is argued the judgment should be reversed because this instruction is misleading in that it assumes Caraway and Slaton, the adjuster, “went over all of the facts” touching the loss and that it unduly emphasizes the matter of Caraway’s foregoing his claim to the $350 for the item of insurance on the building. The latter suggestion we regard as not sufficiently material
But though there be error in this instruction on the peculiar facts of the case, we believe the judgment should not be reversed on account of it, for the reason, according to the view of the jury, no goods
The other arguments put forward for a reversal of the judgment have all been considered, but we do not regard them sufficient to merit discussion in the opinion and they will be overruled, without elaboration. The judgment should be affirmed. It is so ordered.