Burton v. American Guarantee Fund Mutual Fire Insurance

ELLISON, J. This is.an action on a fire insurance. policy. Plaintiff recovered judgment in the trial court. He had recovered judgment on a former trial which was reversed by the St. Louis Court of Appeals. On return of the mandate of that court, plaintiff changed the venue to Camden county. The contention on the part of defendant was that there was what is known as an “iron-safe clause” attached to the policy when delivered to plaintiff, and that the policy as produced by plaintiff at the trial showed no such clause. It appeared from the policy that this had been torn or cut off from the policy. This, as ruled by the St. Louis Court of Appeals in this case, put the onus on plaintiff to disprove or explain the spoliation. 88 Mo. App. 392. There was strong evidence supporting defendant’s claim of spoliation. Yet the trial court gave, over defendant’s protest, an instruction submitting to the jury in detail the facts necessary for plaintiff to prove in order to recover, and directing that if such matters [207] were proven to the satisfaction of the jury to find for plaintiff. The question of the iron-safe clause, which defendant charged had been torn or cut from the policy after its delivery, and which the appearance of the policy prima facie substantiated, was omitted from this instruction, the jury being directed to find for plaintiff without referring to that issue. This would have been error but for the fact that in other instructions that issue was pointedly submitted and the jury clearly informed that plaintiff could not recover unless he established that there was no spoliation in his hands. Ever since the case of Sullivan v. Railroad, 88 Mo. 182, was overruled by the case of Owen v. Railroad, 95 Mo. 169, it has been understood and ruled in this State that although one instruction purporting to cover the whole case omitted an issue tendered by the opposite party, yet if it was clearly submitted in other instructions, so that taking them as a whole they presented the entire case, such omission was not reversible error. Another ground of complaint is that the court, in an instruction, used the words, “made two proofs of loss.”. The word “two” was evidently, by clerical, error, used for “due.” We do not regard the objection as of substantial merit. It is next insisted that the verdict is against the evidence and is the result of prejudice and passion. We have gone over the record and do not find that we would be justified in overturning the verdict on this ground, especially as it has received the sanction of the trial court. We have found nothing to warrant our interference and, hence, affirm the judgment. All concur.