Weber v. American Central Insurance

Smith, P. J.

This was a suit upon a policy of insurance issued by defendant to plaintiff upon a building which was destroyed daring the life of the policy. The defenses relied upon were (1) representations by plaintiff that he was the owner in fee of the ground upon which the building stood when in fact he was not, and (2) a failure to make proof of loss within the time required by the policy.

The case was tried by the court, a jury having been dispensed with. There was a finding and judgment for the plaintiff. The defendant appealed. The only error of which the defendant complains is the giving for the plaintiff this instruction.

“The court declares the law to be that the deed read in evidence from Asa S. Drake and wife to Gr. Weber and Co. operated, so far as the legal title to the land therein described is concerned, as a deed to Gr. Weber alone; and if the court finds, from the evidence, that the plaintiff was the sole owner of the building insured by the policy of insurance sued on, at the time said policy was issued, and continued to be the owner thereof until the nineteenth of November, 1884, and that the said building was at said date destroyed by fire ; and that the plaintiff was, also, during said time, the owner of the land, upon which said building was situated; and if the court further finds, from the evidence, that immediately after the destruction of said building, by fire, the defendant was notified thereof; and that the defendant denied any liability upon such policy, because of an alleged false warranty as to the title to said property, in procuring said policy; and has continued to deny all liability for said reason, then this amounted to a waiver of formal proof of loss, and the court will find the issues for the plaintiff.”

As was said in Cooper v. Ord, 60 Mo. 420, declarations of law are of but little use in a case, tried by the court, except to show the theory upon which it was tried. The foregoing instruction required as a condition precedent to plaintiff’s recovery that the court should find from the evidence that the plaintiff was the sole owner in fee of the property described in the policy of insurance and the court under this instruction must have so found. The theory of the court as to the law upon this point was therefore unobjectionable and its finding upon this branch of the case cannot be disturbed if there was any evidence tending to support it. Hamilton v. Boggess, 63 Mo. 233; Gaines v. Fender, 82 Mo. 497. There was ample evidence to justify the finding of the court in this respect.

The theory of this instruction in regard to the waiver of the condition requiring proof of loss was correct and in haiunony with the authorities. May on Insurance (1 Ed.) sec. 469; Baile v. Ins. Co., 73 Mo. 371; McComas v. Ins. Co., 56 Mo. 573; Ripstein v. Ins. Co., 57 Mo. 86. The theory of this branch of the instruction was supported by the evidence adduced.

In the concluding paragraph of defendant’s brief some mention is made of a demurrer to the evidence. No such demurrer appears in the abstract and if there did we should rule that it has no ground of complaint on that account.

It seems to us from reading the evidence that the facts were sufficiently proved to justify the deductions of the circuit court. So far as we have been able to discover the record of this case, as presented by the defendant’s abstract thereof, is wholly barren of any error calling for our interference.

The judgment is affirmed, with ten per cent, damages.

All concur.