*1 Agеncy’s set-off account; balance there was as to the Maguire subject remaining debt to Agency of the to bank ’ plaintiffs garnishment. is with reversed the cause remanded directions awarding Agency’s deposit enter a to inter- $4000 decree -right pleaders; affirming garnishee’s apply the thereof balance Agency’s note; orders, making concerning the col- Agency Maquire lateral property notes and other possession garnishee, necessary and in may as with accord rulings question allowance of in- herein interest made. terpleaders Ferguson trial also left for determination court. CG.,- Bradley, concur. foregoing opinion Hyde, C., adopted
PER CURIAM:- —The judges concur, opinion except Lucas, J., All court. sitting. Surety Appellant, Corporation, Swanson, Inc., v. Central Corporation (2d) S. W. 783. . 121 Insurance One, Division November 1938. *2 Howell, M.
Chas. E. Floyd Jacobs and Wm. E. Allen appellant. *3 Downing, Lynn R. S. Eastin for Webb and
McCune, Caldwell respondent. *4 burglary policy a insurance is action on
BRADLEY, C . This City. Plain etc., store in Kansas merchandise, plaintiff’s covering and pеnalty interest, plus for $8361.15, and sought to tiff recover was cause alleged pay. to The attorney’s vexatious refusal fees and jury, a without before the court tried appealed. defendant, plaintiff and were for the are on questions The the loss. chief question as to There is no n construction and marks at may term the we validity what of declaration on so-called policy; the requirement of place entry made the defendant;.and bеcause the given at of law law. gave and of facts Baltimore at a store here, conducted appellant Plaintiff, wear, sports ready to ladies’ City, handled Avenue, and Kansas n wear, millinery novelties. and The open- store did not for business until nine a. m. six a. m., About October 17, 1933, Clay, Mark the- porter, store went, as had been his to up the to clean store and custom^ get things ready for the opening of the store by nine theAt a. m. the front of store were opened double doors that and vestibule, into a from the opened vestibule double store. swinging doors into the doors, east, front facing locks, were with a padlock, locked three one the porter others Yale. The (which un- unlocked the doors front locking them) entered, intending released one close and to the re- which, leased door when the lock inside, from with the closed would Yale locks. porter But the got closed, beforе door a man up the ran against and his opening stuck foot threw his and shoulder he hand, released door. man had a in his both pistol This and and porter pushed porter trying on the door. The from the inside trying to close the to enter. door and man from outside “put pistol porter The man on” the “to stick ’em and him told up” he entered, shortly did so. Then man a third. second and out, guarded One of men the other two porter carried $17,495.50. door, back alley, at the merchandise the value (if limited re- By plaintiff provision policy, virtue had) for. robbers could amount When the were covery be sued ready up he porter, but himself they soon released leave tied the police. and notified the- owner and support provision policy upon defendant to relied indemnify the as liable follows: that it is as “To
contention is not furniture, merchandise, fixtures by burglary, for all sured loss hereinafter premises as within assured’s equipmеnt, making felonious persons any defined, pei’son occasioned premises such violence when premises by force and into such actual shall there and violence open business, which are force place entry by such at visible marks made ours.) (Italics . .” tools, explosives, electricity or chemicals. requirement the visible marks is contended defendant show does liability, the evidence a limitation on etc., tools, entry by made were there On other is not liable. evidence defendant absent such is not a requirement plaintiff that the visible contends hand attempt determine to limit and is an liability, on but limitation contends that liability. Also of evidence to show character rule that ambiguous, invokes provision the controverted favorably most construed will be policy such is the case the where *5 given law of appears, the insured. the trial findings facts, from defendant and request requiremеnt was a marks visible opinion that the court was determine limit attempt liability on limitation Also, found liability. evidence to show character
355 - there were no -the by policy marks at of entry visible as - required.. upon support cites relies the following Defendant- cases to by construction it. Bonding contended for v. American [Rosenthal 162, 561; Co., S.) 207 Y. 100.N. E. 46 716, N. L. R. A. American (N. 4 298; Surety Stores; App. 114; v. 2 133 Co. Southern Oil Ala. So. t Supp. 366; Lee v. Acciden 215 N. United Co., Ins. Y. Preferred Co., 309; Supp. Accident 161 N. Y. Sponging Co. v. Preferred Ins. Surety Maryland 242; Abt. National 230 Co., App. v. Ill. Komroff v. Co., 402, 388; Corp. Cas. 105 v. Conn. 135 Atl. Remedial Finance 8; 85 (2d) America, 169 Okla. 36 Pac. Indemnity Company N. Royal Co., Indemnity 299; v. National Super. Schoenfeld Pa. Ct. Bros., 622; Wakem Surety (2d) Co. v. Volk 125 Tex. 82 W. S. McLaughlin & Royal Imperial Co., App. 427; v. 241 Ill. Indemnity 473; Maryland (La.), Co. v. v. Trading Co. So. Frankel Cas. 775; Bonding App.), Massachusetts Union (Mo. Ins. Co. 177 S. W. Indemnity (C. (2d) v. Kleier A. 3rd), Co. C. 34 Fed. Co. 738.] In Lee, McLaughlin, Remedial Finance Corporation, Wakem & Imperial Trading,- Company cаses, Indemnity supra, and Union requirement present case. was about same as In all the cases by held, defendant it upon cited and relied where question raised, requirement the visible marks liability. limitation on In a specific the Rosenthal ease there was provision providing so as follows: “The liable company shall (1) there are unless upon premises actual marks force making entry and violence used exit into the said or therefrom. Of the cited, cases supra, upon defendant, fol by relied lowing concerned the burglary safes, policy required, a condition liability, visible marks on the outside of the safe: The. case, Frankel National Surety Bros., Co. v. Volks The Remedial Fi nance ease, Corporation the Komroff case, Surety and American Co. v. Southern Oil Stores. All these eases cited defendant were sub sequent case, Rosenthal and that case was cited most upon. casеs relied Maryland
Blacknall v.
(Tex. App.),
Cas. Co.
As we view the we rule marks re- the'visible quirement policy in the intended to is limitation on be and liability, ambiguous. provision and we further rule that the is not may provision Court, It .a be trick characterized the Texas as times, many ambiguity, but as has been no room said absent there is rule that will the insurance be favor- contracts construed most n ably to insured. requirement attempt prescribe Is the char to acter against of necessary liability, pub evidence to show void as policy? support lic theory plaintiff chiefly upon To this Rol relies . Assn., App. lins 204 v. Business Accident Mo. 220 Men’s S. W 1022. That case was policy. suit on an accident -The insurance policy provided: “If injuries, fatal bodily received insured otherwise, discharge-of firearms, from the .- . -. the claimant shall establish the injury by téstimony accidental character of of eyewitness at least one to- the accident other than the insured him self, -liability the event of failure d so to o the association shall be pay limited to one-tenth of the amount otherwise ablе.” void, This clause was infringed upon held be because it the province of the court to determine the character -evidence that of might be offered. Having’ reached present the conclusion in the case visible, requirement liability, marks that limitation on is'a ambiguity-, is it necessarily that.there follows that rule we would that requirement such attempt was not an prescribe the character of necessary evidence to adduce in liability, order show we . e l specifically-ru so At court, of the close case at defend - gave ant, five declarations, law, called declaration's and made a faets. Plaintiff contends that the so-called declaration' reversible-error,-and constitutes giving of- the' making law and -a error, of faets ap constitute reversible as pears, supra. say is that- the sufficient evidence on'the issue being place there entry conflicting. marks Plаin tiff contends the so-called’-declaration same, oflaw a is the
effect, as usual the case peremptory declaration. If such .be (cid:127)then giving error, of. see declaration as we shall a constitutes n n (cid:127) presently-;.’ ‘‘ n Declaration a follows: court the law to be declares the plaintiff action, not entitled to recover in .this verdict defendant, plaintiff proved by must as has greater weight person per- credible that the- evidence entry premises sons who madethe actual felonious so into did violence, (i. force and which force and violence e. the force and making entry) violence used in there were visible made such by tools, explosives, at the electric- (cid:127) ity (Italics ours.) or chemicals.” submitted, As a, word was used instead declaration if changed but to as. if support To giving the contention of declaration a consti error, tutes cites Cеntral States Sav. & Loan Assn. v. United Co., States Fidel. (2d) 550; Guar. 334 Mo. S. W. Butler *8 County Bank, 1047; v. 143 44 13,Mo. S. v. Boatmen’s W. Crossett ill, F 704, err 209 52; Vincent Means, 108 W. 327, S. v. 184 Mo. Mo. 82 W. S. 96.
In Central States &- Assn., supra, Sav. Loan it in was a held law a case jury, give tried without it error peremptory dec- was a laration when conflicting, the evidence on the earlier issues contrary cases to the were overruled.
If the present had been a jury,' a, case before declaration without doubt, have' would been error, reversible beсause at it least would have evidence, been an unwarranted though on the comment even it were something construed as other peremptory than a instruction. The finding appears declarations, facts in the record but before .whether, fact, in they order, came in that we know. do not does appear that at -the close of the whole case defendant offered and the court peremptory refused a declaration in usual form. And in says the brief sequence defendant was refusal of its request.for peremptory verdict, a the finding facts,-and directed Having refused defendant’s peremptory declarations.. ease, of the it say close is unreasonable to that declaration a peremptory. was intended to be the finding If of facts were before giving declarations, of the then there-was no occasion, under the simple declarations, here, issues finding because the dis- facts court, what closes was in the theory upon mind of the which finding defendant based. was There separate para- were four graphs facts, in the but last concerned claim of pay, consequence vexatious refusal to is not .here. The first recites, findings, among paragraph other that-the court sitting as a n jury were n no. ‘‘that there any finds marks of' force and vio-
359 place, of at the. entry premises such made'upon lence effect used-to second by tools, electricity or explosives, chemicals.” such The. practically marks issue finding'on recites the the visible 'paragraph paragraph'found third language first. The the same as-in pis- his entered “used feloniously the store persons who none clos- .employee from wedge prevent plaintiff’s a -or.the like to tol as n (that) made point, and were locking ing the door to its ” pistol. premises by said upon the law that the noted court declared declaration a it'will be In plaintiff proved, has be that entitled recover made -. . at the etc., “there were Monnig v. explosives, electricity or chemicals.’-’. entry by tools, 495, (2d) 27 W. was an (Mo. App.), act Easton Amusement Co. S. (cid:127) jury:- court without before the rent, ion for and was tried designated law defendant, as “declaration of gave, for the what was the- evidence this 3,” No. as follows: “The court finds timе heating plant premises at the case that which einadequate to heat thereafter becam making of lease through so-called ordinary wear tear. Of this dec denominated dec “While this is laration of law the court said: among de law, appears in abstract and while it laration of fact; it given law, obviously fendants’ declarations of happens ap it less of such character because and it is none the law, import true pear its must labeled as a declaration of since Platte caption,” citing than its determined its rather contents (Mo. App.), Bank 14 S. W. & Traders’ Valley Bank v. Farmers’ (2d) 12. McDonald, Mo. City App. Co. v.
Kansas Wholesale Gro. mer- possession replevin to recover stock S. W. chandise, fixtures, without tried before the court etc. The cause was *9 jury. appealed. a The found the defendant and the court finding In what was termed of was this: That “there is.no the facts Boyd (mortgagor property) in showing county evidence what of the mortgage,’;’. find- in at time of of this lived the the the execution Of. ‘‘ ing finding question said: The in on its court face shows result, evi- weighing it the action trier of fact in was of of-a determining dence, in a matter of law that no evi- but of as court support had dence at all been adduced that an .essential tended finding fact. should treated rather law The be as a of conclusion. ” , by .- than of fact settlеd verdict. as issue - finding appears it a declaration law So whether so-called of or depends purports upon its-contents and fact is what it b.e not its case, .more jury, in the tried without a we think it present label. And say to. is. than a a. no more .reasonable -so-called declaration made, upon such fact that “there were finding -of no or electricity by tools, explosives, "at the of. so rule. required by policy, and we chemicals” as law and giving declarations of error "Was reversible committed (Div. 1), Robertson In Suddarth v. making finding a of facts? 151, “In these 286, appears: l. 24 W. actions 293, Mo. c. S. this is con jury,. a where evidence law, by tried the court without give instructions the same flicting, the refuse court should and given, being jury. a The instructions trying when the case before finding general plaintiff or court may defendant. be This proceeded, and we theory able to on what of law court is then see how the court fоund the facts. This are at the time able see same 2135, facts) Section Revised course, pointed (finding by or out 952), pursued.” should (now Statutes 1889 Sec. 161, 173, 946, 38 S. W. (Div. 1), l. c.
In Kostuba v. Miller 137 Mo. by law court without a it said: “In trial actions at jury, theory upon the case was tried in order that the law which facts, may how the found the apparent, be made' as well as court may give as when the court or refuse instructions the either same out trying jury, pointed a course pursue the ease bеfore or 952). 2135, (now Revised Statutes 1889 Sec. Section [Suddarth ought pur Robertson, court, course, not to 118 Mo. v. 286.] inconsistent, required to are they sue both courses because which pursue requested, may general either unless but make found.” equivalent to ‘all the facts a declaration of law (Italics ours.) 442, 286 S. W. Falvey (Div. 1), et 315 Mo.
And al. v. Hicks distinguish that, (as in law actions l. c. is this: “It is true by the without the aid purely ‘equity actions) tried court able from requested, give refuse jury, should, either when in writ (commonly law) state instructions declarations called ing separate^ of facts found from conclusions conclusions law, pursue courses,” citing both but the Suddarth should not cases, supra. Kóstuba without -case-,'supra, ejectment -Suddarth was tried jury. -finding judgment was reversed There of facts. The was no declarations the'refusal cause remanded because of -of-two case,.supra, was plaintiff. The Kostuba
or instructions asked father, money daughter her to recover for received daughter (defendant) gave declara- court,-at - against Judgment facts. went tions of law made a daughter'and-she Having requested appealed; said, facts', was, -position complain, finding the court á she point not ruled. hence the *10 Judge was written Brace and opinion in Kostuba case The Barclay Judge in which filed a memorandum he But
all concurred. affirming judgment, court it concurring in circuit “While said:
361 a intimating party thаt my to be understood not intention is alone) properly ask (tried by may not action at law the court 1889 findings 2135, Statutes under Revised specific of fact Section (under requests Sec. 952); court and also submit to the (now Sec. instructions) (in the 2188, Sec. for declarations 967), now nature applicable to any proposition.of law facts.” on case, proceeded Falvey plaintiffs under what is supra, et al. In the Ann., 856, (Mo. 1929 Stat. sec. 856, Revised Statutes now Sectiоn estate in them. Decla 1131), certain real vested p. to have title to separate finding no given, but- of facts. of law there- Was ration were Suddarth, Kostuba, Falvey case neither the apparent It is that give law make it error that is.reversible holds and declarations .'to presented finding in either of these of facts. No such situation a ease, in that it that in Kostuba and case was held cases, except quéstion. position in no to raise Our cоmplaining Was party it holding find no case is ease and we attention called finding <eflaw make give declarations error to and' is reversible fact. law giving how the appreciate
We cannot declarations of mere facts, making prejudice party. finding of could be either and purpose showing on trite that what It is declarations serve the might appear the same from theory proceeded, trial and think facts, declarations. do not finding likely but not so as in We re making constitute giving finding of facts error, so rule. versible not by plaintiff finding claimed of facts is sufficient.
It is only have finding We point The states conclusions. facts, do quoted (supra) referred and we to and necessary not deem it in full. set out Ann., (Mo. 952, 952, p. Revised Stat. sec.
Section Statutes that, case) of a 1225), provides (in trial a law question court, writing “the court of fact shall state separately from law.” conclusions of found the cоnclusions of facts statutory ,. A “facts all the ma finding of . . embrace should bearing facts involved and should set them out terial the issues .on detail, merely inferences therefrom. state conclusions 259, Co., Bank & v. Mercantile-Commerce Trust Mo. [McBride (2d) W. l. c. and cases there facts 48 S. cited.] simple way present complicated, case are in no and we think that the is sufficient. affirmed, it Ferguson ordered. should is so Hyde, GC. concur. Bradley C., opinion adopted foregoing PER CURIAMThe concur, except Lucas, J., judges the court. All the opinion
as the sitting.