(273 S.W.) 3. Insurance ~553(1)—Plaintiff entitled to re- ! cover on fire policy, unless variance in amount sworn to in proofs of loss and amount proven was so substantial as to constitute fraud. In suit on fire insurance policy, plaintiff was entitled to recover, though there was a variance existing between amount of loss sworn to in proofs of loss and amount proven, unless such variance was so substantial or material as to constitute fraud. "Instruction No. 6. believe and find from the evidence that, after "The court instructs the jury that, if you the fire in plaintiff's premises at 2001-2005 Market street, in the city of St. Louis, Mo., on March 3, 1922, the plaintiff, in accordance with the terms of said policy, furnished the defendant with an inventory of the goods and merchandise which were partially destroyed by said fire, and that in said inventory it was stated that the value, before said fire, of the goods Appeal from St. Louis Circuit Court; A. and merchandise partially destroyed by said B. Frey, Judge. "Not to be officially published." Action by the Wittels Loan & Mercantile Company, a corporation, against the American Central Insurance Company, a corporation. Judgment for defendant, and plaintiff appeals. Reversed and remanded. Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for appellant. fire, was $26,883.79, and that the damage or loss thereto as a result of said fire amounted to and find from the evidence that the value, bethe sum of $24,545.67, and if the jury believe fore the fire, of the goods or merchandise partially destroyed by said fire, did not amount to the sum of $26,883.79, or that the loss and damage thereto as a result of said fire did not amount to the sum of $24.883.79, and that plaintiff knew at the time of the making of said inventory that the value of the goods and mer Jones, Hocker, Sullivan & Angert, of St. chandise before said fire did not amount to the Louis, for respondent. sum of $26,883.79, if you so find, or that the damage or loss thereto as a result of said fire DAUES, P. J. This is an action on a fire did not amount to the sum of $24,883.79, if you insurance policy. There was a verdict and so find, and if you further find and believe judgment for the defendant, and plaintiff from the evidence that said statements were appeals. The policy covered a stock of goods, made by the plaintiff with fraudulent intent, consisting of jewelry, clothing, and other the defendant, then the court instructs the for the purpose of deceiving and defrauding merchandise. The fire occurred on March jury that the plaintiff cannot recover, and 3, 1922, and plaintiff carried a total insur- your verdict will be in favor of the defendance of $44,000 on the goods; the insurance being distributed between eleven different companies. The petition alleges that the damage suffered was $38,045.70, and that the amount due on the present policy is $2,161.69, together with interest and reasonable attorneys' fees. The answer, admitting the insurance, alleges that the total loss was $12,912, and further sets up the defense of fraud and false swearing, both as to the value of the goods and the amount of the loss, and certain other defenses not necessary here to refer to. The reply puts in issue the allegations of the answer. ant." "Instruction No. 7. "The court instructs the jury that, if you believe and find from the evidence that after the fire which occurred on March 3, 1922, at the premises occupied by plaintiff, the plaintiff, in accordance with the terms of said policy, furnished the defendant with proofs of loss duly sworn to by one of the officers of plaintiff, that in said proofs of loss it was stated that the sound value of the goods and merchandise in plaintiff's store at 2001-2005 Market street, in the city of St. Louis, Mo., at the time of the fire on March 3, 1922, was $44,503.32, and that the loss and damage to such goods and merchandise as the result of said fire amounted to the sum of $38,045.70, and if you believe and find from the evidence that The loss in this case grows out of the same loss involved in the cases of Wittels Loan & Mercantile Co., a Corporation, Appellant, the aforesaid statements, or either of them, v. Liberty Fire Insurance Co., a Corporation, Respondent (No. 18907) 273 S. W. 192, and Wittels Loan & Mercantile Co., a Corporation, Appellant, v. Pacific Fire Insurance Co., a Corporation, Respondent (No. 18720) 273 S. W. 191, decided by this court on June 2, 1925. There is a difference in both the facts and the instructions as given in cases No. 18907 and No. 18720. However, we need not further discuss that difference, since the instruction complained of in this case contains the same vice which worked a reversal of the judgment in the former cases. Appellant complains of instructions No. 6 and No. 7, given for defendant, in the instant case. These instructions are, respectively, as follows: in said proofs of loss, were false and untrue, and that plaintiff did not have in said store, on March 3, 1922, goods and merchandise of a sound value of $44.503.32, or that the loss or damage thereto did not amount to the sum of $38.045.70, and that plaintiff knew at the time of the making of said proofs of loss that the goods and merchandise in said store was not of a sound value of $44.503.32 (if you so find), or that the loss and damage thereto did not amount to the sum of $38,045.70 (if you so find), and if you further find and believe from the evidence that said statements were made by the plaintiff with fraudulent intent for the purpose of deceiving and defrauding the defendant, then the court instructs you that the plaintiff is not entitled to recover, and your verdict will therefore be in favor of the defendant." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [1-3] Observably, the instructions are a rescript of the instructions in the former cases, except that portion italicized by us in the instant instructions, and therefore the present instructions are not vulnerable to the attack that the jury were not required to find from the evidence that the statements made by plaintiff were made with fraudulent intent and for the purpose of deceiving and defrauding the defendant. These instructions, like the instructions in the former cases, required the jury to find the loss on partially destroyed goods to be exactly $26,883.79. It is shown in evidence that an er in the case of Wittels Loan & Mercantile Co. v. Liberty Fire Insurance Co., No. 18907, the judgment is reversed, and the cause remanded. BECKER and NIPPER, JJ., concur. BLUFF CITY SHOE CO. v. LEVY et al. (No. 18959.) (St. Louis Court of Appeals. Missouri. June 18, 1925. Rehearing Denied July 7, 1925.) ror was made in the inventory for the loss. on saved goods, and the claim as finally made was for $20,426.17. So under this instruction plaintiff necessarily had to lose its case, unless it proved its loss on goods partially destroyed to be $26,883.79, or, in other words, $6,457.62 greater than the amount claimed by plaintiff. By instruction No. 6 the jury were advised that, if they should find that the value of the goods partially destroyed by fire did not amount to the sum of $26,883.79, they must find for the defendant. Again, if the loss and damage to the merchandise which was partially destroyed did not amount to the exact sum of $24,545.67, the verdict must be for the defendant. In instruction No. 7 the jury were required to return a verdict for defendant if plaintiff did not have in said store, on March 3, 1922, merchandise of the sound value of $44,503.32. Again that, if the loss and damage to said goods did not amount to the sum of $38,045.07, the verdict must be for the defendant. As has been pointed out in the authorities cited in the case of Wittels Loan & Mercantile Co. v. Liberty Fire Insurance Co., No. 18907, false representation or concealment must relate to a matter material to the transaction involved. False representation in order to be actionable must relate to "material facts;" that means facts necessarily having some bearing on the subject-matter. These instructions submit the amount in dollars and cents, and positively direct the jury that, if either the value of the property, or the value of the damaged goods, or the loss to the damaged goods was less in any sum, however small, than the amount represented, then the plaintiff is cut off of recovery. The instruction does not submit the proposition to the jury that the variance existing between the amount sworn to and the amount proven must be substantial or material in order to constitute fraud, but it leaves the jury no avenue of escape in finding for the defendant, if there is any difference whatsoever between these figures. We think these instructions were erroneous and prejudicial, and, for the reasons set out Sales 53(1)-Evidence of personal connection of defendant's president with purchase of goods held insufficient for jury. Evidence held insufficient to take to jury question of personal liability of defendant corporation's president with purchase of goods, for price of which plaintiff sued. 2. Sales 53(1)-Whether goods were purchased for defendant corporation held for jury in action for price. Whether goods were purchased for defendant corporation through its president and purchasing agent, or for company occupying part of same premises, held for jury, in action for price. 3. Appeal and error 1050(1)-Testimony that orders for goods were taken for defendant held not prejudicial error, in view of other evidence. In action for price of goods sold, testitaken for defendant corporation held not prejumony of plaintiff's salesman that orders were dicial error, in view of other documentary and oral evidence as to conversation with defendant's purchasing agent, and circumstances under which orders were given. 4. Evidence 354 (5)—Ledger of credit clearing house showing receipt from plaintiff of claim against third party in amount of that sued on held properly excluded. In action for price of goods, which defendant claimed were ordered for another company, ledger of credit clearing house, showing its receipt from plaintiff of claim in same amount against latter company, held properly excluded, in absence of competent evidence that plaintiff lection, and offer to connect it with account sent in claim against such company for colsued on. 5. Evidence 181-Carbon copy of letter dictated by defendant to plaintiff held inadmissible. Carbon copy of letter alleged to have been dictated by defendant to plaintiff, held inadmissible, where original was not accounted for, nor any notice given plaintiff to produce it, and there was no testimony that it was ever duly mailed to plaintiff. 6. Appeal and error 1058 (3)-Exclusion of testimony as to matter testified to by appellant's president held not reversible error. In action for price of goods, which defendant claimed were ordered for another company occupying part of same premises, exclusion of (273 S.W.) testimony of latter company's treasurer that [ Louis were delivered by the carrier to the defendant company had nothing to do with his Noble Express & Transfer Company, who company held not reversible error, in view of were authorized to accept shipments for the similar testimony by president of defendant F. Levy Shoe Company. company. 7. Appeal and error 1050(1)-Admission of 301-Admission of testimony, not assigned as error in motion for new trial, not considered. Admission of testimony, not assigned as error in motion for new trial, cannot be considered. 9. Trial 228 (1)-Instruction not intended to cover entire case or direct verdict held not error because not requiring certain finding necessary to recovery. In action for price of goods, which defendant claimed were ordered for another company, instruction merely defining what must be proved to constitute delivery, and not intended to cover entire case or direct verdict, held not error, because not requiring finding that defendant actually ordered goods. The defendant F. Levy Shoe Company adduced testimony tending to show that it occupied the premises 1413-1415 Washington avenue; that at the time the goods in question were purchased the St. Louis Mail Order Company temporarily occupied a part of the premises numbered 1413 Washington avenue; that the goods in question were not purchased through either William Levy or for their account, but that the goods were purchased for the St. Louis Mail Order Company, and were delivered at 1413 Washington avenue through the Noble Express & Transfer Company. It is to be noted, however, that the plaintiff adduced no testimony whatsoever, nor did the testimony adduced on behalf of the defendants in any way connect the defendant William Levy personally with the purchase of the said bill of goods. Both at the close of plaintiff's case as well as at the close of the entire case each of the defendants offered separate instructions in the nature of demurrers, all of which were overruled. [1, 2] As to the defendant William Levy, the point is here made that the learned trial judge erred in overruling the demurrer of Appeal from St. Louis Circuit Court; fered by him at the close of the case. CounGeorge E. Mix, Judge. "Not to be officially published.". Action by the Bluff City Shoe Company against William Levy and another. Judgment for plaintiff, and defendants appeal, Affirmed in part, and reversed in part. Taylor, Mayer & Shifrin, of St. Louis, for appellants. sel for plaintiff below, respondent here, have not sought to make any defense to this point. In fact, under the record before us, obviously the point is well taken, and as to this defendant the judgment must be reversed outright. However, as to the other defendant, F. Levy Shoe Company, we hold the demurrers well ruled. Witness George Iniechen, adduced on beRendlen & White, of Hannibal, and Hope half of the plaintiff, testified that he was a & Hope, of St. Louis, for respondent. BECKER, J. Plaintiff recovered judgment against each of the defendants in an action as for goods sold and delivered. Both of the defendants appeal. According to plaintiff's petition, and there was evidence adduced to support the allegations therein, plaintiff sold the F. Levy Shoe Company, a corporation of St. Louis, Mo., a number of shoes, the several orders therefor being taken by one George Iniechen, one of plaintiff's salesmen, from William Levy, one of the defendants, who was "president and purchaser and buyer for the F. Levy Shoe Company," and "no one else was authorized to purchase goods for it." There is no question but that the goods were actually shipped by the plaintiff from their factory at Hannibal, Mo., under bills of lading made out to the F. Levy Shoe Company, and that the goods upon arrival in St. salesman for plaintiff, and on November 9, 1921, called at the place of business of the F. Levy Shoe Company, where he spent an hour or so displaying his samples to William Levy and Harry Cool, and that he received from them an order for the F. Levy Shoe Company for the shoes herein sued upon; that he made out the orders in duplicate, and gave copies of them to said William Levy. The original orders, which were identified by this witness, were printed forms of order sheets of the plaintiff company, and were filled out as "sold to F. Levy Shoe Company, town, St. Louis, for shipment January 15." William H. Logan, a witness for plaintiff, testified that he was the treasurer and manager of credits and sales for the plaintiff company, and that he received orders for the shoes herein sued upon in due course of business, passed upon the credit of the defendant F. Levy Shoe Company, entered the orders in their factory, and that the shoes were For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [3] Appellants call attention to the fact that plaintiff's witness, George Iniechen, after identifying plaintiff's Exhibits 1 and 2 as being in his handwriting, and being the original orders for the shoes in litigation in this case, testified that the orders were taken from thereupon made up and shipped to the said, tions in the nature of demurrers, offered by F. Levy Shoe Company. This witness identi- the defendant at the close of plaintiff's case fied the original bills of lading showing that and again at the close of the entire case. the shoes were shipped to the F. Levy Shoe Company, and he further testified that duplicates of the bills of lading were sent to the defendant in the regular course of the United States mail, postage prepaid. Plaintiff further testified the shoes were never paid for. John H. Othman, also a witness for plain-William Levy and Harry Cool,' and was tiff, testified that he was cashier of the C., B. & Q. Railroad Company's freight office in St. Louis, and identified receipts for the several shipments of shoes to the defendant F. Levy Shoe Company herein sued on, showing delivery to the Noble Express & Transfer Company, and this witness also identified a typewritten authority, signed by the F. Levy Shoe Company, authorizing the said Noble Express & Transfer Company to receipt for goods shipped to them via the said C., B. & Q. Railroad, which said authority was introduced in evidence. Henry M. Weiss, a witness for defendants, testified that he was a brother-in-law of the defendant William Levy, and that the said William Levy was the president of the F. Levy Shoe Company, and that "he was the executive active officer in charge of the business of the said F. Levy Shoe Company," and was managing and operating its business at the time when the shoes herein sued on were alleged to have been purchased. This witness further testified that the shoes were, in fact, delivered by the Noble Express & Transfer Company to 1413 Washington avenue to the storage room occupied jointly by defendant F. Levy Shoe Company and the St. Louis Mail Order Company; that the St. Louis Mail Order Company was incorporated in October, 1921, with a capital of $10,000, and that William Levy, one of the defendants, and the witness each put up $3,000 toward the payment of its capital; that when the shoes in question were delivered to 1413 Washington avenue, the St. Louis Mail Order Company received the shoes in question, but never paid for them. Defendant William Levy testified that he was "president and purchaser and buyer for the F. Levy Shoe Company, and that no one else was authorized to purchase goods for it;" that Mr. Cool never had anything to do with the F. Levy Shoe Company at any time, and that Mr. Weiss at the time he was connected with the St. Louis Mail Order Company did not have anything to do with the said F. Levy Shoe Company. He further testified that the F. Levy Shoe Company had no connection of any kind with the St. Louis Mail Order Company, and had never at any time purchased any goods or merchandise from the plaintiff. In light of the testimony which we have set out above, it is readily apparent that the thereupon asked for whom the orders were taken. To this question counsel for defendants objected, on the ground that the question "for whom" called for a conclusion of the witness, and that the witness should be required to state facts. This objection was overruled, and the witness answered that the orders were for "the F. Levy Shoe Company, one of the defendants here." This is urged here on appeal as error prejudicial to the defendants. If this answer alone were the sole testimony with reference to the question as to whom the order was taken for, we might well rule the point in favor of appellants. However, since the record before us is replete with documentary evidence as well as oral testimony of several witnesses, both for defendants as well as for the plaintiff, covering in detail the conversation and circumstances under which the orders for the shoes in question were given, we must rule the point adversely to appellants. [4] Complaint is made that the trial court did not permit the defendants to introduce in evidence the ledger of the Credit Clearing House, offered for the purpose of showing that the said Credit Clearing House had received from the plaintiff a claim against the St. Louis Mail Order Company for $767.29, being the exact amount of the claim involved in this suit against. the defendants. At the time the ledger was offered Fred L. Bauer was on the witness stand, and had testified that he was manager of the collection department of the Credit Clearing House of St. Louis, and had charge of its records with reference to claims, but that he had no personal knowledge from whom the Credit Clearing House had received the said claim; that he was not in charge of the office at the time the claim was received; that he knew nothing of the manner in which the claim was transmitted to them. The witness had further testified that if there was any correspondence had between the Bluff City Shoe Company and the Credit Clearing House with reference to the claim, that such correspondence had been sent back to the Bluff City Shoe Company. The court sustained the objection of plaintiff that the ledger was "not the best evidence, and was not binding upon the plaintiff, and is hearsay, and would be incompetent as to it unless it was something they authorized to be done or received au (273 S.W.) In the absence of any competent evidence | started business with $6,000 in cash, after that the Bluff City Shoe Company had sent being in business for one year was able to in for collection the alleged claim against the pay its creditors but 2.85 cents on the dollar? St. Louis Mail Order Company and an offer to [8] The only objection that appears in the connect up such claim with the shoes herein record is the statement made by counsel for sued on, the court properly refused to permit defendants that "the witness is not on trial the said ledger to be introduced in evidence. for the collection of a bill in bankruptcy [5] Nor is there any merit in the contention here." Whether we view this remark as that the court committed error in sustaining proper objection or not, and irrespective of an objection to the introduction in evidence the fact that the court required the witness of a carbon copy of a letter alleged to have to answer the question, the error, if any, been written at the dictation of William Levy was harmless, since the very same witness one of the defendants, to the plaintiff. The had just prior thereto, without objection, anoriginal was not accounted for, and admitted-swered a like question in the affirmative. ly there had been no notice given to plain- Furthermore, we call attention to the fact tiff to produce the original. As a matter of that no such assignment of error was set fact no testimony was adduced to the effect out in defendants' motion for new trial. that the original letter had ever been inclosed in an envelope addressed to plaintiff, with postage prepaid, and deposited in the United States mail. [6] A witness, Weiss by name, who testified that he was the treasurer of the St. Louis Mail Order House, when asked if the F. Levy Shoe Company had anything to do with the St. Louis Mail Order Company, answered, "Nothing whatever." This answer, upon objection that it was a conclusion, was stricken out. This is urged here as error. We note, however, that William Levy, one of the defendants and president of the F. Levy Shoe Company, during the course of the trial, was permitted to testify that the F. Levy Shoe Company "had no counnection of any kind with the St. Louis Mail Order Company; that to the witness' knowledge the F. Levy Shoe Company never bought any merchandise from the plaintiff company in 1922, and never did handle any of its merchandise or anything similar, * and that no such that [9] Error is also assigned in the giving of instruction No. C at the request of plaintiff, on the ground that said instruction does not require the jury to find that the F. Levy Shoe Company actually ordered the shoes. The instruction seeks, however, only to define what is necessary for plaintiff to prove to constitute delivery, and is not intended to cover the entire case, nor to direct a verdict. It follows that the point is not well taken. So far as the defendant F. Levy Shoe Company is concerned, the record discloses no prejudicial error, and the judgment as to it should be and the same is hereby affirmed. No case having been made against the defendant William Levy, the judgment as to him is accordingly reversed. DAUES, P. J., and NIPPER, J., concur. CO. (No. 19104.) (St. Louis Court of Appeals. Missouri. June orders were ever given by the F. Levy Shoe Company to the Bluff City Shoe Company, LUMATZ v. AMERICAN CAR & FOUNDRY and that none of the goods called for in the orders were received by it; * the F. Levy Shoe Company never received and never used, and never saw and did not know anything about the merchandise in question, and that he never saw it; that he was president and purchaser and buyer for the F. Levy Shoe Company, and that no one else was authorized to purchase goods for it; that Mr. Cool never had anything to do with the F. Levy Shoe Company at any time, and that Mr. Weiss, at the time he was connected with the St. Louis Mail Order House in 1922, did not have anything to do with the F. Levy Shoe Company." The error complained of in this state of the record was not prejudicial to the defendants so as to warrant the reversal of the case on that ground. [7] It is assigned as error that the witness Weiss at the court's insistence, over defendants' objection, was required to answer the question as to whether it was not true that the St. Louis Mail Order Company, which In action by employé for injuries while dressing an emery wheel by means of a dresser tool, evidence that emery wheel was dangerous while it was being dressed, and that guard which plaintiff used, held sufficient, in view of was placed on dresser tool, but none on one Rev. St. 1919, § 7058, to make case for jury on issue of defendant's negligence as for violation; section 6786 requiring dangerous machinery and machines to be protected by guards, the term "machine" including every mechanical and devices to perform some function or prodevice or combination of mechanical powers duce some certain effect or result. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Machine.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 273 S.W.-69 |