O'Connor v. Columbia Insurance

CAULFIELD, J. Suit to recover $450 on a policy of insurance covering a shipment of twelve mules, two of the mules having been damaged. There was a verdict for plaintiff, but the circuit court granted a new trial on the ground that “plaintiff is not entitled to recover under the petition and the evidence,” and the plaintiff has appealed. The policy sued on proceeds as follows • [154] Marks and Nos. HENRY O’FLYNN INSURANCE. ST. LOUIS. CONDITIONS Free from loss or damage unless cause by fire, derailment or collision. The assured warrants to report any loss under this certificate immediately to the office of the company, 79-85 Wall Street, New York, or to W. D. Hem en way, St. Louis, Mo. COLUMBIA INSURANCE COMPANY. No. 2139. $2600 at ^4 -$6.50 A Joint Stock Company incorporated under the laws of the State of New Jersey. New York Agency. 79 Wall Street, N. Y. ■ F. Hermann, Manager. St. Louis, Mo„ March 11th, 1909. THTS IS TO CERTIFY, that on the 12th day of March, 1909, this company insured for Wm. O. Connor Twenty-six .Hundred Dollars on 12 mules, in event of loss no one animal to be valued at more than $225 against total loss or general average only. Value at sum insured. Shipped per Rock Island R. R. at and from St. Louis, Mo., to Tucumcari, New Mexico. Loss if any, payable to the order of assured. This insurance subject to conditions as in margin and on back, hereof. IN WITNESS WHEREOF, etc. (The form used is conceded to be one intended for marine insurance.) There was no evidence adduced at the trial that the damage to plaintiff’s mules was caused by “fire, derailment or collision.” If, then, the marginal stipulation is part of the policy and enforceable as such and plaintiff had the burden of proving that the damage was due to one of the three causes mentioned therein, the order granting a new trial must be approved. The policy expressly states that the insurance effected thereby is “subject to conditions as in margin,” and there can be no doubt that the stipulation in the margin is part of the policy. [See 1 May on Insurance, sec. 158; Crigler v. Standard Fire Ins. Co., 49 Mo. App. 11.] It must be regarded as controlling, too, because it is the only part of the policy which purports to state the risks or causes of loss or damage insured against. The body of the policy is entirely lacking in that respect, except by referring to the [155] margin. It states merely that defendant “insured for ¥m. 0. Connor Twenty-six Hundred Dollars, on 12 mules.” Nothing is said as to what is insured against. The phrase “against total loss or general average only” is a marine insurance phrase which limits liability by reference to the extent of the loss. It does not refer to the cause of loss. That the risk or cause of loss or damage insured against is a necessary ingredient of an insurance contract concerning property, see Tyler v. New Amsterdam Fire Ins. Co., 4 Robertson’s Reports (N. Y. Super. Ct.), 151; The First Baptist Church v. The Brooklyn Fire Ins. Co., 28 N. Y. Rep. 153, 161. It cannot be justly urged that defendant’s obligation to insure against other risks than those expressly mentioned in the margin, may be implied from the nature of the .transaction, because the law will not imply a promise or obligation of a person against his own express declaration. Such declaration is repugnant to any implication ■ of a promise or' obligation. [Suits v. Taylor, 20 Mo. App. 166.] Not only is the marginal stipulation controlling hut it is unambiguous, plainly limiting defendant’s liability to loss or damage caused by fire, derailment or collision. Now, as to the burden of proof. This, is not a case where one clause in a.policy has.the effect of taking out of another clause something that would otherwise he included in it. There is only one clause, the marginal one, on the subject in question.. Thereby the plaintiff’s property was insured only against three things, and there is no doubt that he had the burden of proving that his damage was due to one of them. [The St. Louis Gras Light Co. v. Am. Fire Ins. Co., 33 Mo. App. 348; Laessig v Travelers’ Protective Assn, 169 Mo. 272, 69 S. W. 469; 3 Cooley’s Briefs on Insurance, p. 2882.] The judgment is affirmed and the cause remanded. Reynolds, P. J., and Nortoni, J., concur.