*1 214 MISSOURI APPEAL REPORTS. Brokerage Corp. Rosen-Reichardt Co. v. Assurance question, propounded, called to answer, any response. striking that, We think in out cautioning jury disregard it, the statement prejudicial pre- appear, for error it will not be jury disregarded sumed that instructions of again, question court or their oath. Then violated this presented the consideration of the court in de- fendant’s ruling for new trial, motion a and the court, over- prejudicial did not consider it
same, error. We largely defer subject, to the views of the court below on that great left those are matters to a extent to its App. [Distler discretion. v. Ins. 206 Mo. 263, 227 S. Wojciechowski Coryell, 133;W. 638.] v. S. W. judgment The Commissioner recommends that be affirmed. foregoing opinion PER CURIAM:—The of Davis, opinion adopted judgment
C., as the court. The accordingly of the circuit court is affirmed. J., Allen, P. Danes, Becker and concur. JJ., ROSEN-REICHARDT BROKERAGE COMPANY, Corporation, Respondent, v. ASSUR LONDON Corporation, Appellant.* CORPORATION, ANCE Appeals. Opinion Louis Court of June St. Filed 1924. Policy: INSURANCE: Marine Insurance: Free of 1. Particular Aver- age: Against Only. Total Loss Where contract of marine insur- average, against only, is free of total ance recovery permit any partial damage and does not or loss to thing insured. Exceptions Exemptions: -: -: -: Must be 2. Ex- Language. pressed in Clear If Unmistakable a marine insurance company operation compre- to limit or restrict desired .of the provisions special proviso, of its contract hensive exemption, exception expressed it should have such limitation clear, language. and unmistakable TERM, v. Assurance Strictly -: -: Construed -: Restrictive Provisions: in Favor of Insured. marine insurance Restrictive policies insurer, always strictly and, are construed open constructions, two most to the insured the one favorable *2 adopted. Commodity: 4. -: -: Deterioration of Defined. Deteriora- commodity, understood, ordinarily tion of a is a constitutional impairment, degeneration involving hurt or some in the substance such, thing; example, arising decay, of the for as that from cor- rosion, disintegration. or Soiling Commodity 5. -: -: of with Sea or Water Other Foreign soiling Substance: Not Deterioration. of The mere a com- modity foreign substance, resulting with sea water or other in a purely superficial impairment simple or hurt removable process cleansing, of cannot be said to be deterioration of the commodity ordinary generally accepted meaning within the term. Damage: Synonymously 6. -: -: Deterioration: Used Not Policy. policy,.the Marine In a marine insurance use of the “damage” damage word in a clause “when the said occurs necessarily fire” does not show that the word “deterioration” used preceding clause, synonymously “damage,” a was used with for say commodity damage to that a deterioration a is a to say commodity necessarily not to that a to a a deteriora- it, may tion of or that there not. be without deterioration. Policy: Exempt 7. -: -: Insurer Not Construction: from Liability Damages by Soiling by for or Suffered Losses Sea Water Foreign policy Other Substance. A clause a marine insurance stating guarantee insurer material de- terioration, leakage, except nor when occurs wrecked, steamer is sunken or when leak, stranding, collision, obliged steamer call, three-quarters discharge into and there at least cargo, qualified policy providing her clause of the insurance made and consented to the condi- average, exempt held to. tions free of effectual liability partial damages the insurer from and losses goods insured, arising deterioration, material it from losses suffered soil- ing goods of the water other substance. sea Judgment on -: -: Allowance Interest 8. Interest: Policy: Not Marine Insurance Erroneous. In an action on marine given policy, or loss was insurance where notice agent survey required of insurer made 214 M. A—43. 214
674 MISSOURI APPEAL REPORTS. Rosen-Reicliardt v. Assurance inspection damaged goods of the which were on his recom- expense insured, mendation recleaned at the where more thirty days prior than to the date from which interest was allowed representative knowledge the insurer’s had full all the facts and circumstances relative to the loss under knowledge goods, such recommended the held thirty days that an allowance of interest from a date after payable insured, losses under the was not er- roneous. Insurance, Cyc, p. (1926 Anno); 1. *Headnote Marine 26 670 Insurance, Cyc, p. (1926 Anno); 2. Marine surance, 26 666 3. Marine In- Cyc, p. (1926 Anno); Insurance, Cyc, p. 26 666 4. Marine 26 (1926 Anno); Insurance, Cyc, p. (1926 Anno); 5. Marine Insurance, Cyc, p. (1926 Anno); Marine 7. Marine Insur- ance, Cyc, p. (1926 Anno); Insurance, Cyc, p. 8. Marine Appeal City from the Circuit Court Louis.— St. Judge.
Ron. Robert W. Rail, *3 Aeeir.med.
Brownrigg, Englar Bighorn, Mason & Altman and appellant. & Jones Gatesby
T.
of counsel.
Jones,
(1)
It
conceded
the defendant
that if the dam-
age
to these raisins were due to a risk
covered
policy,
expense
then the
incident to
them
item of
was an
recoverable
loss
from the underwriter.
(2)
policy
This loss
covered
because,
peril
although
was due
of the sea
particular average
insurance was
to free of
con-
particular ditions. Where insurance is free of
thoroughly
proposition
it is
well understood as maritime
insurance
the insurance is
total
permit
recovery
any partial
and does thing
loss or
to the
&
insured. Thames
Creosoting
Ins.
v. Pacific
Co.
Co.,
Arthur E. Haid for (1) It is a familiar rule construction of contracts, especially contracts, of insurance the most given policy favorable construction is to be Fidelity favor the assured. Rosenbach v. National , y. Gas. 221 Modern Co., 386; S. W. Mathews Woodmen, 236 Mo. 151; S. W. Stark v. John Hancock Mut. Ins. Co., 159 S. Le Maitre v. 758; -Life W. 964; National Cas- ualty Co., S. W. Marine Ins. Co. v. McLanahan, S, Thompson Fed. 685; 290 287, v. Phoenix Ins. Co., U. Companhia 34 L. Ed. London 408; Assurance v. etc., (2) 42 L. Ed. 167 U. S. of in- Where susceptible interpretations equally surance is of two that construction reasonable, most favorable to the as- though adopted, even otherwise sured must be intended Security the insurer. Howell v. Mut. Life. Ins. Co., Fed. 411; S. Marine Ins. McLanahan, W. Co. w. 685; Parker M. & Co., Russell M. v. Insurance Co>. Thompson v. Phoenix Ins.
W.
U. S.
*4
L.
Bank
408;
Ed.
First Nat.
v. Hartford Fire Ins. Co.,
24 L.
U. S.
Ed.
London
.v. Com-
563;
Assurance
panhia
(3)
etc., 167 U. S.
L. Ed. 113.
The law
does not favor
and contracts of insurance
forfeitures,
possible,
be
not to
construed,
.must
so
defeat the
indemnity.
Security
Howell v.
claim
Mut. Life Ins.
(4)
“Art. 1. Are at the of the Assurer all dam- ages things insured, and losses which occur to tempest, stranding, shipwreck, collision, forced away, jettison, changes voyage bearings forced in the route, explosion generally all acci- steamer, perils of the seas.” dents designated respect goods “Art. 10. With following guarantee the assurer table, leakage, exceed- nor even material deterioration except: three-quarters, ing
“(a) fire; the said occurs When When the “(b) been sunken wrecked; steamer has stranding col- “(c) a leak, When, obliged into a steamer lision, three-quarters discharge at least of her there call of cargo. goods of material free deteriora- “Table ’ ’ Art. 10. conditions tion long but dried commodities, list of Here follows appear in the list. do currants page the first There printed portion occurring space in the a blank into following clause: policy the consented to made present insurance “The (Art. Free subject to conditions: policy).” conditions 10 of *5 TEEM, MAEGH Corp. Brokerage Co. v. Assurance
Rosen-Reichardt by agreed clause the insurance It below that this by made covered of
of conditions agreed follows: further It was as day August, on of while said or about first That steamship Burma was en route from Venice to New shipment of dried said with said steam- currants, York by tempest, report ship is encountered a shown “protest” steamship master of Burma, said portion of which as follows: material proceeded voyage on her with variable winds “She August 10at a. m. until first in the meridian and weather parallel 31' and while en of Bermuda route Venice general cargo ports' and call to New York with and green find fruit, we ourselves the midst of storm breaking unexpectedly out of southwest. The sea galish getting and and At 8 wind worse. mountainous p. aspect tempest, assumes the aided m. the weather thirty-six strong current of the G-ulf about Heavy rolling per tossing, hour. and waves break miles keep keeping them "We wash flooded. over and decks, Pumps tightly are and ventilators closed. hatches continuously. brought up "Water is mixed worked cargo, cargo pertaining believed matter averaged.” moved shipment the arrival of said cur-
That dried plaintiff delivery Missouri, Louis, at St. rants inspection, of currants cases found, it was slightly requiring damp soured, immediate were samples handling, chemical currants tests indicating presence con- were in salt the cases showed with sea water. tact inspection
That after the currants said were recleaned which is of $3210.04, at cost and reconditioned they again cause, in this were- sued for consumption and and suitable human marketable disposed such. sued for was That the not caused being wrecked, steam- the steamer sunken discharge being obliged into' a of call and er APPEAL REPORTS. MISSOURI Brokerage Co. v. Assurance speci- cargo, following stranding a collision leak, *6 "but said Conditions, fied in Article 10 of the General report by tempest, the a shown caused protest steamship, causing or water the the master of through leak into the hold the hatches to ventilators depositing the mat- vessel and salt and other necessary making ter said currants and it- dried being or reclean recondition said dried currants before marketed. judgment plaintiff
The trial resulted in a in the judgment sum of and from this the $3659.44, defendant appeals.
It is conceded the defendant that if the to the currants insured was due to risk covered a policy, expense then the incident to them iteman of loss recoverable Defend ant however, that the was not contends, loss covered although because, due to peril subject par sea, the insurance was free ticular conditions. Defendant the well- invokes recognized applicable rule, to marine insurance con particular where tracts, that, the insurance free of av erage, only, permit it is total loss and does not recovery any partial damage thing loss to Corporation Companhia [London insured. Assurance v. Moagens de Do 167 U. Barreiro, Washburn, etc., v.Co. Reliable Ins. Marine Co., 179 U. S. 1; Thames Creosoting Ins. v.Co. Pacific Fed. Fogarty, 565; Great Ins. 640.] Western v. Co. 86 U. S. urges Defendant since the insurance was that, made and consented to to conditions free of average (Article general pol- 10 of conditions icy) provisions , and since under the said Article 10 guarantee against insurer does not material deteriora- except tion, when caused or when the fire, steam- following been er has sunken, wrecked, or-when stranding leak, a or a collision, steamer been obliged put discharge into a of call and there at three-quarters cargo, least of her and since the sued for did not occur or when TERM, y. Assurance Kosen-Beichardt or when wrecked, liad sunken, steamer stranding had been collision, a port leak, a steamer discharge obliged of call and there into exemption cargo, within the the loss comes recover. is not entitled to the By general 1 of the conditions plaintiff against “all to insure the contracted things occur which losses generally through tempest . all accidents . . question perils There can be no of the seas.” compre these broad loss sued for covered company provisions Article If the desired hensive comprehensive operation of these or restrict the to limit proviso, special by a the contract, *7 expressed exemption, exception, should have such it language. re in and unmistakable clear Such limitation always strictly provisions construed are strictive open constructions, the one to two insurer, and, the adopted. [Mathews to the v. favorable most 139 Mo. America, 342, 236 c. 326, l. Modern Woodmen & Ins. Co. v. Pacific Creosot 151; Thames S. W. ing 567; l. c. Marine Ins. Co. v. Mc 561, 223 Fed. Co., Thompson l. Phenix Ins. 685, 688; 290 Fed. c. v. Lanahan, 297; 136 l. c. National Bank v. Insurance 287, U. S. Co., Corpora l. c. London Assurance 673, 679; S.U. Co., Companhia Moagens Do 149, v. de U. S. Barreiro, tion Fidelity Casualty Co., l. Rosenbach v. National c. App. 221 S. W. v. John Hancock 386; Stark Mo. (Mo. App.) 758; Lemaitre Life Ins. S. W. Co., Mutual Casualty App. W. 195 Mo. v. National 964.] qualified by Article relies
Defendant exempt typewritten referred it from clause above to, liability provisions imposed of Article Ar- exempts any ticle partial damage arising or loss from material deteriora- respect goods designated in to the the table tion designated out in the article. Dried currants are not set table, so 10 does not of itself in this that Article only. liability. all, do if at so, defendant from It can 211 MISSOURI APPEAL REPORTS. Co. v. Assurance typewritten of the effect said because clause policy, to-wit: present
“The insurance is made and consented to subject particular average (Article to conditions: Free of general policy).” of10 conditions of the There is much discussion in the briefs of counsel concerning the effect of this clause. We have hesi- no tancy, adopting plaintiff’s however, view of coun- amplified according sel, that the clause, to its manifest meaning, would read as follows: present
“The insurance is made consented to subject conditions: Free specified general Article condi- 10 of the '” tions of the agreed parties
Moreover, was “that below, the insurance covered was made provisions conditions,” said clause. obviously only So that effect of this clause was import goods dried currants into the table of set out in Article 10, and the matter for determination here is the effect of the of Article 10, construed though designated dried currants were in the table of goods set out article.
Defendant- contends that material deterioration as used in Article 10 is to be taken in the broad sense or loss; whereas, contends that material meaning scope deterioration has a much narrower in its *8 damage though than damage or loss, there awas or resulting tempest, to the currants from the or other peril of the seas, there was no deterioration of cur- the meaning rants within the true of that term. We are in- adopt plaintiff’s and do, clined to, view. Deteriora- commodity ordinarily tion aof as understood is a con- impairment, involving stitutional hurt degen- or some thing, example, eration in the substance of the such, for arising disintegration. decay, as that from corrosion, soiling commodity mere The of the with sea water or foreign resulting superficial other purely substance in a impairment by simple process hurt or removable of TERM, 1924. Brokerage Co. v. Assurance cleansing, of the a deterioration to be be said cannot accepted ordinary generally commodity within the gen- fixing meaning its of term. The liability by so in Article did of eral “damages comprehensive and losses.” terms broad exemption partial from it desired to its make If or desig- designated goods under certain loss on certain fixed conditions, nated provisions broad its easily it have done so of Article could language. employment appropriate The the defendant knew how ex- demonstrates that itself “damages empt losses” it when wanted itself from so; 2 of conditions of the do Article for, “damages provided not it that it liable through occurring civil or hos- war, and losses” captures, reprimands, arrests, molestations of tilities, popular governments, riots, insurrections, movements, attempts political boycottings, other and all strikes, provided doings; by 3 it it was like “damages arising through all and losses” vice from propre thing, of the caused rain, temperature, steam hold, insects, the influence captures, confiscations and events theft, mice rats, arising prohibited from contraband, whatsoever or fraudu- commerce, acts, criminal, felonious clandestine captain, crew, known lent pro- barratry Article 4 master; and bv name “damages and losses” it was not liable vided that the management things insured, if they representatives its were retained place longer case if than would have such one management not intervened. had urge argument use counsel that the
Defendant’s “damage” in the “when the said clause, of the word fire,” shows that the word occurs “de- preceding in the clause, used was used as terioration” “damage.” agree. synonymous this we To do commodity say of a that a deterioration To commodity say that a to a neces- it is not to sarily may that there be it, a deterioration dam- *9 APPEAL REPORTS. 214 MISSOURI Rosen-Reicliardt Co. v. Assurance age reference in the clause without deterioration. The “damage,” not, “deterioration” therefore, synonymous used as mean the two words are terms. Obviously qualified provisions of Article of the effectual clause exempt partial from defendant for damages arising from to the currants insured, losses material ity not to it deterioration, and from liabil- damages soiling or losses suffered of the currants sea water other substance. judgment In on the its the court interest allowed amount December 1920. Defendant objects that there was no basis allowance of in- terest because there was no evidence as to when the dam- payable age became under the terms policy. provides Article 14 and losses thirty payable days for which defendant is liable are complete presentation justifying after documents bearer of those documents and of the without power attorney being necessary.' agreed by It parties given below that notice of the or loss was required by agreed It was also that the agent survey inspection of the defendant made the currants November 1920, and that it recommendation his the currants were recleaned expenses plain- incident thereto incurred appears thirty prior days that, tiff. So that more than date from which interest was allowed, defend- representative knowledge ant’s had full of all the facts plaintiff’s relating circumstances and such currants. loss, and with knowledge recommended the point
In view of this, it is manifest that the concerning made is without merit. the allowance of interest The Commissioner, therefore, recommends that the judgment of the circuit court be affirmed. foregoing opinion PER CURIAM:'—The Sutton, adopted opinion judgment as the
C., of the court. The accordingly Allen, circuit court is affirmed. J.,P. Danes, JJ., and Becker and concur.