Kern v. South St. Louis Mutual Insurance

Fagg, Judge, delivered the opinion of the court. This case was tried in the St. Louis Circuit Court, and both parties seem to have proceeded in the trial upon the theory that the question really in issue was whether the ad [25] ditions and alterations made to tlie insured building by the plaintiff were such as materially to increase the risk and hazard from fire. This is a question of fact, and its determination is peculiarly within the province of the jury. A question is presented for consideration here that was not raised in the court below, and is one that we are not authorized to pass upon. It refers to the force and effect to be given to a condition attached to the policy upon which this suit was brought, which requires a notice to be given of every change to a building insured, or in which property is insured by the company, made by repairs, additions, or otherwise. If made without the consent or approval of the president, in writing, previously obtained, the policy is to have no effect until the approval of the president or directors is secured. It is true that the plaintiff, in declaring upon the policy, refers to it as being attached to and made a part of the petition. But whatever form of words may be used in referring to papers which are to be understood as mere exhibits in the cause, they cannot in any proper sense make them parts of the pleading—Hadwen v. Home Mut. Ins. Co., 13 Mo. 473; Curry v. Lackey, 35 Mo. 392; Baker v. Berry, 37 Mo. 306; Bowling v. McFarlan, 38 Mo. 465. It is true that the defendant sufficiently denies that the plaintiff complied with all of the conditions and stipulations in the policy, but still the point is not presented in such a manner that we can consider it here. The policy covered a two-story brick building, situated on the northwest corner of Third and Lombard streets in the city of St. Louis, and in which there was a wagonmaker’s and blacksmith’s shop. The whole amount of insurance was $5,000 — $2,500 on the building and the same amount on the stock in the shops. It appears that the building was consumed by fire on or about the 8th day of January, 1864. The fire was first discovered about five o’clock in the morning, and was then burning in the building and in the yard adjoining. About six weeks previous to that time, the plaintiff had erected a [26] steam boiler, with a furnace beneath it, of the length of twenty feet and about eight feet high, adjoining the north wall of the insured building, and tliat a wooden shed, about thirty-five feet long, fifteen wide, and twelve feet high, bad been erected to cover the same; that a gang of two saws had been placed at the eastern end of the shed, and under it, for the purpose of sawing the timber used in the sliop. The engine was placed inside o f the brick building, and supplied with steam by a pipe passing through the wall. This seems to have constituted the substance of the facts proved on the trial. The jury were left to decide the question as to the increase of risk upon the description of the alterations and additions alone. The testimony offered on the part of the defendant ought to have been admitted. In tlie case of Webber v. Eastern R.R. Co., 2 Metc. 147, a witness was called to give his opinion upon the question, whether the proximity of a railroad to the insured property would be likely to increase the rate of premium of insurance against fire. He did not profess to be an expert, but his means of knowledge on that subject resulted from his having been for a long time secretary of a fire insurance office, and as such “ charged with the duty of examining buildings and taking into consideration all circumstances bearing upon the risk and rate of premium.” The court held that these facts “ rendered bim competent to give his opinion as evidence to the jury upon that subject.” So we think in this case that the witness John C. Vogel, after stating that he had been “an officer” in an insurance company in the city of St. Louis for twelve years past, and that he was “ familiar with insurance in mutual insurance companies and the rules of insurance” — made him a competent witness to give his opinion on these subjects. It must be, to a very great extent, matter of opinion at best, and the value of opinion in such cases must greatly depend upon the experience and familiarity with the business possessed by the persons called upon to give them. Jurors cannot be presumed to be so familiar with questions of this sort as to be [27] able to give their opinions correctly merely upon having a description of the premises with the alterations and additions made by the assured. The instructions given contained correct propositions of law; and if all the competent evidence offered in the case had been permitted to go to the jury, there would have been no reasonable ground of complaint. All -the authorities, so far as they have been examined, agree in the conclusion, that when the alterations or additions materially increase the risk, so that the insurer would be entitled to a higher rate of premium, the policy is to be treated as absolutely void if the assured fails to give the notice required—Gardiner et al. v. Piscataquis Mut. F. Ins. Co., 38 Me. 439; Curry v. Commonwealth Ins. Co., 10 Pick. 535; Francis v. Somerville Mut. Ins. Co., 1 Dutcher, 78; Bratwright v. Ætna Ins. Co., 1 Strobh. 281; Schenck v. Mercer Co. Mut. Ins. Co., 4 Zab. (N. J.) 447. By its refusal to admit competent testimony, therefore, error was committed by the court; and the judgment is reversed and the cause remanded for further trial. The other judges concur.