Catron v. German Insurance

Smith, P. J. This is an action on an insurance policy issued by the appellant to the respondent on his dwelling house and furniture, for loss by fire of said property. The petition is in the usual form. The answer contains, first, a general denial, and then sets up as a special defense misrepresentations and fraud, and a failure to comply with the terms of the policy in [548] giving notice and furnishing proof of loss. The plaintiff put in issue by replication the new matter in defendant’s answer. The trial resulted in a verdict for the plaintiff and the defendant appealed. The evidence tends to show that respondent’s house and furniture were destroyed by fire on the twenty-eighth day of January, 1895, and on the next day James H. Huffstetter, the appellant’s local agent, was at the plaintiff’s place of residence and prepared a notice for the plaintiff to be sent to the defendant informing defendant of the loss by fire of the said prop-, erty, and on the same day the plaintiff sent said notice by mail to defendant at its home office in Freeport, Illinois. On the nineteenth of Feburary, 1895, the plaintiff went before E. A. Brown, a notary public, and caused two papers to be made out at the same time exactly alike, of proof of loss. One paper marked “a true’ copy” he retained, the other, on the next day, February 20, he sent by registered letter to defendant, at its home office, and in a few days thereafter received from the postmaster of Freeport, Illinois, receipt for same. The paper sent to defendant is mentioned in the evidence as the “original” and the one retained by plaintiff the “copy” of proof of loss. Upon the trial, plaintiff offered in evidence the paper so retained by him and the defendant objected to it on the ground that it was a copy and not the original instrument and that no notice had been served upon defendant to produce the original paper. The court, after inquiring of plaintiff as to when and where the two papers were made out, and if they were compared, to see if they were exactly alike, overruled the defendant’s objection and admitted the paper in evidence. Prior to and at the time of taking out said insur [549] anee', the plaintiff was the owner in fee of one hundred and eighty acres of land where his dwelling house stood. In 1889 he borrowed $4,000, $2,000 of which was borrowed from the Forest City Bank, and the other $2,000 from George Weber, the president of the bank, and gave as securities, John L. Chuning, J. F. Bridgeman, and B. F. Fleming, and to indemnify them as such securities gave a deed of trust on his said land for $4,000. In the deed of trust, by a mistake, the debt is stated to be due the Forest City Bank, when only $2,000 was due the bank and the other $2,000 was to Mr. Weber, president of the bank. Prior to taking out the insurance, the plaintiff paid off the debt due the bank, leaving only the $2,000 to Mr. Weber unpaid. Each year this debt to Mr! Weber was renewed by the respondent by paying up the interest and taking up the old note and giving a new note with the same securities. These securities did not require any other or different security from the plaintiff and the deed in trust remained upon the record unsatisfied, and while the record showed at the date of taking out the insurance an incumbrance on the farm of $4,000, there was but $2,000, and this an equitable mortgage. The facts shown by the evidence being substantially as already stated, the defendant’s demurrer to the evidence was properly overruled. The plaintiff made out a prima facie case entitling him to go to the jury. The testimony of the plaintiff that he gave the preliminary notice required by the terms of the policy was sufficient to justify the finding of that issue in favor of the plaintiff. The defendant strenuously objects that the trial court erred in permitting the copy of the proof of loss which the plaintiff mailed to the defendant to be read [550] in evidence. This objection we do not think well taken. The only objection suggested to the introduction in evidence of the paper purporting to be proof of loss' is that it is a copy instead of the original proof of loss furnished the defendant. While designated a copy by the defendant, the evidence tends to show that it was a duplicate. One of these papers was as much the original as the other. They were simultaneously prepared. One was transmitted to the defendant within the time and in the manner required by the policy, while the other that was offered in evidence was retained by the plaintiff. They were of equal dignity. Each was primary evidence. Mathews v. Railroad, 66 Mo. App. 663; Barr v. Armstrong, 56 Mo. loc. cit. 586. The issue as to whether there was a breach of the warranty in respect to incumbrances on the insured premises was fairly submitted to the jury under the evidence and appropriate instructions. It is true the evidence tending to show the amount of the incumbrance at the time of the application for the policy is somewhat conflicting, yet it is, we think, ample to authorize the finding of that issue for plaintiff. So far as we are able to discover, no error prejudicial to the defendant was committed by the court below in the trial of the cause, so that it results that the judgment must be'affirmed. All concur.