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(273 S.W.) KISTENMACHER v. TRAVELERS' INDEM- ,7. Appeal and error m882(11) Insurance NITY CO. (No. 18972.)

company, admitting value of stolen silver.

ware, held not entitled to complain on appeal (St. Louis Court of Appeals. Missouri. June that no evidence showed its value. 2, 1925. Rehearing Denied June 24, 1925.)

In action on policy of burglary insurance, 1. Insurance Om665(1)-Evidence held suffi. where defendant company, in amended answer,

cient to sustain finding that sale of insured which was introduced in evidence, admitted valliquor was made or attempted to be made be- ue of silverware alleged to have been stolen, it fore National Prohibition Act took effect.

cannot complain on appeal that there was no In action against insurance company for

evidence tending to show value of such silver

ware. loss of insured liquor by burglary defended on ground that plaintiff acquired title to liquor in

Daues, P. J., dissenting. violation of law, evidence held sufficient to sustain finding that sale of insured liquor to Appeal from St. Louis Circuit Court, Wilplaintiff was made, or attempted to be made, son A. Taylor, Judge. before National Prohibition Act (U. S. Comp. "Not to be officially published.” St. Ann. Supp. 1923, § 1013874 et seq.) took effect.

Action by Herman Kistenmacher against

the Travelers' Indemnity Company. Judg. 2. Appeal and error Om 1010(1)-Finding of ment for plaintiff, and defendant appeals.

trial court in law case is conclusive on ap- Affirmed.
peal, when supported by substantial evidence.
Finding of trial court in law case, tried to

Jones, Hocker, Sullivan & Angert and Wil. court, is conclusive on appeal, when supported liam V. O'Donnell, all of St. Louis, for ap by substantial evidence.


Abbott, Fauntleroy, Cullen & Edwards, of 3. Contracts om 137(1)-Contract only remote- St. Louis, for respondent.

ly connected with unlawful transaction, if supported by independent consideration, and case can be made out without relying on unlawful

NIPPER, J. This is an action, brought transaction, is valid.

by plaintiff against defendant, to recover on If contract is only remotely connected with a policy of burglary insurance, dated May unlawful transaction, and is supported by inde- 8, 1920, covering household goods, articles of pendent consideration, and case thereon can be silverware, wines, liquors, beverages, etc. made out without relying on unlawful transac Plaintiff alleged that on October 29, 1920, tion, it is valid.

he suffered a loss of two barrels of whisky, 4. Insurance Em327 (1)—Insurance policy cov- and a 24-piece set of silverware. The whisky ering liquor bought before taking effect of

was alleged to be worth $2,000 a barrel, and National Prohibition Act, and while War- the silverware $100. The amount of indemTime Prohibition Act was in force, held valid. nity for the liquors was $3,000. Plaintiff

Where liquor was bought for use of pur- asked judgment for $3,100. chaser and his guests while War-Time Prohibi The defendant in its amended answer, uption Act (U. S. Comp. St. Ann. Supp. 1919, 88 on which it went to trial, pleaded as a de311511/12f-311511/12h) was in effect, and be- fense, among other things, that the plaintiff fore National Prohibition Act (U. S. Comp. St. had acquired no title to the whisky which Ann. Supp. 1923, § 1013874 et seq.) went into

was stolen, and had no insurable interest effect, insurance policy covering such liquor was therein, because the same was acquired in valid, in absence of anything indicating inten

violation of law. tion in transaction to violate law.

The reply was a general

denial. 5. Intoxicating liquors Cm325-Effect of War At the close of the whole case, the parties

Time Prohibition Act and of National Pro- in open court agreed to waive the trial by hibition Act on title to intoxicating liquors

a jury. The jury was discharged, and the stated.

cause submitted to the court, sitting as a War-Time Prohibition Act (U. S. Comp. St. jury. The court, after refusing certain decAnn. Supp. 1919, 88 311511/12f-311511/12h) | larations of law requested by defendant, did not undertake to destroy title to whisky found the issues for plaintiff, and defendpurchased in violation of its provisions, but provided penalty therefor, but National Pro

ant appeals. hibition Act, commonly called Volstead Law (U.

The evidence discloses that plaintiff paid 8. Comp. St. Ann. Supp. 1923, § 1013874 et the premiums on the policy in suit. At the seq.), prohibited title being taken to whisky time the policy was issued, he was living procured or attempted to be procured in un at 4533 Wichita avenue, in the city of St. lawful manner.

Louis. The premises where he lived consist6. Intoxicating liquors w325–Prior to enact. ed of a two-family flat. The plaintiff occupied ment of National Prohibition Act, whisky was

the upstairs portion of the building, and also property.

the basement. He had lived there almost Prior to enactment of National Prohibition two years prior to the issuance of the policy. Act (U. S. Comp. St. Ann. Supp. 1923, & His brother-in-law owed him $3,000 in bor1013814 et seq.), whisky was recognized as rowed money, and, being unable to repay him property.

in cash, according to plaintiff's testimony, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the brother-in-law, Theodore Lutz, who had , in a remote way with an unlawful transacbeen a dealer in liquors, paid plaintiff the tion, if such contract is supported by an indebt he owed him with two barrels of whis- dependent consideration, and plaintiff can ky, which were delivered to plaintiff on the make out his case without relying upon the 16th of January, 1920, and a few hours be- unlawful transaction, the contract is valid, fore the Volstead Law (U. S. Comp. St. and should be enforced. The defendant conAnn. Supp. 1923, & 1013814 et seq.) went into tends, however, that plaintiff cannot make effect. Lutz had borrowed the money from out his case without relying upon the unlaw. plaintiff during the year 1919 in several dif- ful sale of the whisky to plaintiff by Lutz. ferent amounts, totaling the sum of $3,000. Among the cases relied upon by defendant to The whisky was agreed upon, as a method support its contention is the case of State ex of paying the debt, about the 14th or 15th of rel. Connecticut Fire Ins. Co. V. Cox (Mo. January, 1920. On October 29, 1920, while Sup.) 268 S. W. 87. In that case, one Howell plaintiff and his wife were away from home, sued an insurance company on a policy of some one entered the premises, broke the fire insurance. The Supreme Court held that lock upon the locker in the basement, and he could not maintain the action against removed the whisky from the barrels. Plain- | the insurance company, because he had no tiff testified that he immediately notified the insurable interest in the automobile; the defendant of his loss, but the written proofs reason of this being that he had failed to of loss were not made until he was visited comply with the mandatory terms of the by an adjuster for the defendant, on March statute in the purchase of the car. The law 8, 1921. In these written proofs of loss he made certain requirements with respect to gave the date of the acquirement of the the assignment of the certificate of ownerwhisky as March 5, 1920. However, he ex-ship, and specifically provided that, in case plained that in his testimony, and there is these requirements were not followed, such substantial testimony to show that the whis- an attempted sale "shall be fraudulent and ky was acquired by plaintiff, and the de- void." The War-Time Prohibition Act nolivery made to him, prior to the taking effect where undertook to destroy the title to whisof the Volstead Act.

ky purchased in violation of its provisions, [1, 2] There is considerable testimony but provided a penalty for its violation. The brought out on cross-examination as to the National Prohibition Act, or what is someamount of salary that plaintiff was receiv- times called the Volstead Law, prohibited the ing, for the purpose of showing that the sale | title being taken to whisky, procured or atas made by the brother-in-law to plaintiff tempted to be procured in an unlawful manwas not a bona fide transaction,

But the ner.

Prior to the enactment of the National finding of the court in a law case is conclusive Prohibition Act, whisky was recognized as upon appeal when supported by substantial property. Amos v. United States, 255 U. S. evidence, and there is ample evidence to sus- 313, 41 S. Ct. 266, 65 L. Ed. 654; Voorhies tain the finding that the sale was actually v. United States (C. C. A.) 299 F. 275. As made to plaintiff or attempted to be made on we stated before, there is substantial evithe date above mentioned by plaintiff.

dence to show that the purchase was made Plaintiff also offered in evidence the sec- prior to the date the National Prohibition ond amended answer filed by defendant, Act went into effect. At that time the mere which admitted the loss of the silverware possession of whisky was not unlawful, and of the value of $100. In view of the ques- the evidence does not disclose that plaintiff tions presented on this appeal, it becomes intended to use it for an unlawful purpose. unnecessary to further refer to the facts at There is a difference between enforcing an this time.

insurance contract, insuring things which it The points made by defendant, and urged is unlawful for one to have in his possession as grounds for a reversal of this case, are —such as counterfeit coins, lottery tickets, nine in number, but when considered are and gambling implements—and insuring really boiled down to two. The first is that whisky, which plaintiff had a lawful right plaintiff had no insurable interest in this to have in his possession, and use in the property, because, even conceding that it manner which he indicated that he intendwas purchased during the time the War-Time ed to use this, namely, for himself and his Prohibition Act (U. S. Comp. St. Ann. Supp. bona fide guests. Voorhies v. United States, 1919, 88 311511429-311511/2h) was in effect, supra. and prior to the taking effect of the National If the evidence had disclosed in this case Prohibition Act, such purchase was made in that the defendant undertook to insure plainviolation of law, and therefore plaintiff ac- tiff in an unlawful illegal business, a difquired no insurable interest. The second ferent result would be reached. But, prior to proposition urged by defendant is that there the taking effect of the National Prohibi. was nothing to show the value of the silver- tion Act, whisky was recognized as property. ware.

and the mere fact that plaintiff had the whis. .[3-6] It is a well-settled proposition of law, ky in his possession did not necessarily indiand one invoked by the plaintiff in this cate that he intended to violate the law by case, that, when a contract is only connected making an illegal use of the same. In fact,

(273 S.W.) the evidence shows to the contrary. Kellogg in the necessity of showing that he violated v. German-American Ins. Co., 133 Mo. App. the law, and he required the aid of an ille391, 113 S. W. 663. Nothing in the contract gal transaction to recover this insurance. of insurance indicates any purpose or inten- This the law does not countenance. Nemo tion to violate the law, and we cannot say, allegans suam turpitudinem est audiendus. as a matter of law, that plaintiff entered in. Finley v. Williamson, 202 Mo. App. 276, loc. to a contract of insurance to protect himself cit. 289, 215 S. W. 743. in illegal acts. There was a valid consid It will not do to say that the liquor was eration. The defendant accepted plaintiff's susceptible to lawful use. The liquor was money, and still has it. The question of how unlawfully acquired, and therefore it was plaintiff obtained the whisky is merely in- unlawfully in the possession of plaintiff, and cidental in this case, and the insurance was its possession was unlawful even before the not necessarily intended to encourage acts Eighteenth Amendment went into effect. in violation of law.

The prohibition laws, at the time in question, As above stated, the War-Time Prohibi- permitted the keeping of whisky already action Act did not declare that no title should quired for personal use, under certain cirpass to whisky bought in violation of its cumstances defined in the act. However, the terms, but merely pr ded penalty. Nor law per itted the keeping of such whisky is there anything in the laws of this state in possession only when the whisky was lawdeclaring such a contract of insurance as fully acquired. This will be seen from the this void ; and therefore we are of the opin- reasoning of the Kansas City Court of Apion that it ought to be enforced against the peals in the case of Murphy v. St. Joseph company. Lumbermen's Mut. Ins. Co. v. R. Transfer Co., 235 S. W. 138. Co., 149 Mo. 165, 50 S. W. 281. Among the I think our Supreme Court very recently, cases supporting this conclusion may be cited in State ex rel. v. Cox, 268 S. W. 87, loc. cit. the following: Niagara F. Ins. Co. v. De- 89, 90, has clarified this situation. That Graff, 12 Mich. 124; Armstrong v. Toler, 11 case involved an insurance policy on an autoWheat. 271, 6 L. Ed. 468; Erb v. German- mobile which had been sold in violation of American Ins. Co., 98 Iowa, 606, 67 N. W. our motor vehicle law. The case came to the 583, 40 L. R. A. 845; Mechanics' Ins. Co. Supreme Court on certiorari from the Springv. Hoover Distilling Co., 182 F. 590, 105 C. field Court of Appeals, and in deciding that C. A. 128, 31 L. R. A. (N. S.) 873.

case the Supreme Court quoted the follow[7] It is also contended that there was ing from the Springfield Court of Appeals, nothing to show the value of the silverware. to wit: However, defendant, in its second amended

"The law as settled in Missouri seems to be answer filed in this case, and which was in that a disregard or a violation of positive law troduced in evidence, admitted that the sil- cannot be a consideration for a valid contract, verware was of the value of $100, and it is and that such contracts will not be enforced in in no position to complain at this time. our courts, and this whether the act which is

We are of the opinion that the judgment forbidden either at common law or by statutory should be affirmed. It is so ordered.

law is malum in se or merely malum prohibi

tum.” BECKER, J., concurs.

The Supreme Court approved what was

there said, and cited a long line of additionDAUES, P. 'J. (dissenting). I find my al cases in harmony with that doctrine. The self unable to share the views expressed, and Court of Appeals in its opinion went furthe conclusion reached, in the majority opin-ther (and such is not disapproved by the ion, and briefly set forth my reasons for this Supreme Court), and said in that case (Howdissension.

ell v. Connecticut Fire Ins. Co., 257 S. W. The plaintiff in this case admittedly ac- 178, loc. cit. 180): quired the whisky contrary to law. It is axiomatic then that plaintiff's possession of

“With the exception of penalties provided the liquor was illegal. It is true that the merely as fiscal expedients or revenue excise National Prohibition Act, known as the Voled that contracts, the performance of which is

regulations, the courts of Missouri have declarastead Act, expressly provides that no prop- a violation of law, are void, even though there erty rights shall exist in liquor unlawfully is no express declaration in the statute declaracquired, and that this provision is not in ing such transactions void”-citing Reichardt terms contained in the War-Time Prohibition v. Hill, 236 F. 817, 150 C. C. A. 79. Act, but that does not alter the situation in my judgment. The sale of whisky for bev

And so the insurance policy here was to erage purposes, without authority or permits cover the loss of liquor which was acquired from the national government, was illegal in violation of law, and for that reason I and void under war-time prohibition, the cannot escape the conclusion that the policy Volstead Act, and the Eighteenth Amend- is void and cannot be enforced ; plaintiff's ment. Harkins v. Provenzo, 116 Misc. Rep. claim to the liquor is founded upon a trans61, 189 N. Y. S. 258.

action which is in fraud of the positive laws In the instant case plaintiff found himself i of the United States. I cannot agree that,

prior to the taking effect of the Volstead Appeal from St. Louis Circuit Court; WilAct, property rights in liquor were not de- son A. Taylor, Judge. stroyed under the circumstances of this case. "Not to be officially published.” Plaintiff acquired no property rights, since

Action by Louise Deming against Rolla he acquired the liquor in violation of the law. Wells, receiver of the United Railways Com

The majority opinion relies upon the case pany of St. Louis. Judgment for plaintiff, of Voorhies v. U. S. et al. (C. C. A.) 299 F. and defendant appeals. Affirmed. 275. That case teaches the doctrine, as I read it, that, although liquor is seized under

Charles W. Bates, T. E. Francis, and Ausa defective search warrant, it will not be tin E. Park, all of St. Louis, for appellant.

Mark D. Eagleton, E. J. Hullverson, and ordered returned unless there is a showing that the defendant's possession thereof was Harry S. Rooks, all of St. Louis, for respond

ent. lawful, and this notwithstanding the unreasonable search and seizure clause of the

NIPPER, J. This is an action for damConstitution. And the court further holds that there is no property right in liquor used to have been sustained by plaintiff about 9

ages on account of personal injuries alleged unlawfully. In delivering the opinion, the o'clock p. m., on December 27, 1922, near the learned judge said: “Liquor illegally pos- northwest corner of Union avenue and Delsessed is not to be treated as are articles

mar boulevard, in the city of St. Louis. which may be lawfully possessed." The

Plaintiff recovered judgment in the sum of plaint of respondent that defendant's unlaw

$3,000, and defendant appeals. ful possession of the liquor is a mere incident

There were various assignments of negliin the case, not affecting the insurance, does gence in the petition, but plaintiff asked for not merit support.

and received instructions submitting only For these reasons, briefly stated, I am con

one assignment, namely, the violation of the strained to dissent. I think this judgment, vigilant watch ordinance, thereby abandonso far as same covers the loss of the whisky ing all other assignments of negligence in is concerned, should not be permitted to the petition. The answer was a general destand.

nial, coupled with a plea of contributory negligence.

There were only two persons who saw the accident, and who testified in this case. One was the plaintiff, and the other was Mr.

Nichols, an inmate of the Masonic Home. DEMING V. WELLS. (No. 19005.) The Masonic Home is situated on Delmar

boulevard, a short distance west of this street (St. Louis Court of Appeals. Missouri. June

intersection. 2, 1925. Rehearing Denied June 24, 1925.)

From the plaintiff's evidence it appears 1. Street railroads Om 117(23) Pedestrian's that she had been out in the western part of negligence in failing to look held for jury. the city, and had started to her home on

A pedestrian crossing a street at an inter- Olive street. To go there by way of street section, after looking both ways on a dark, car, she boarded a Union avenue car north of foggy, rainy night, held not negligent as matter Delmar boulevard. When she had reached of law in failing to look behind, or to see Delmar boulevard, going south, she alighted street car turning into street, which she was from the street car at the stopping point, and then crossing, from her rear.

traveled in a southwesterly direction until 2. Trial Om267(3)-Modification of instruc- she reached the curb at the northwest cor

tion, so as to submit question whether fail. ner of Delmar and Union. She then traveled ure to look was negligence, held not error. directly south to cross Delmar boulevard, for

When pedestrian's negligence in failing to the purpose of boarding an east-bound Dellook for street car approaching from rear was mar car when one should approach from the question for jury, modification of instruction to west. The defendant maintains a doublefind for defendant if she failed to look, so as to track street railway on both Union avenue require jury to find whether such failure was and Delmar boulevard. Union avenue runs negligent, held not error.

north and south, and Delmar boulevard ap3. Damages Ow208(3)—Whether Injuries to proaches Union from the west from a slight

pedestrian, struck by street car, were perma- ly northwestern direction, and not directly nent, held for jury.

from the west, thus making a sharp angle at Whether injuries to pedestrian, struck by this northwest corner. There is a car track, street car, were permanent, held for jury. which leaves the Union avenue line at this 4. Damages w 130(3)-Verdict of $3,000 for point and turns west in a curve to Delmar

injuries to back, shoulder, etc., held not ex. boulevard in a westerly direction. cessive.

Plaintiff described the night as being a Verdict of $3,000 for wrenched back, in "foggy, ugly, raining night." She testified jury to shoulder and sacroiliac joints, and that when she had almost reached this track, other bruises held, not excessive.

which turns to the west from Union, she

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mFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(273 S.W.) looked east and west and saw there were no tient for a long time, “maybe as long as she cars on Delmar to prevent her crossing the lived." street, and when she had reached about the The only evidence offered by the defendcenter of this track, which turns west from ant as to the actual occurrence of the acciUnion, she was struck by defendant's street dent was that of A. A. Nichols, above mencar, and received the injuries hereafter re- tioned. He testified that he was coming ferred to. She said she tho ght the Union from the west on a Delmar car, and had avenue car would continue south, and did alighted at this crossing and was proceeding not expect it to turn west on this curved north to the north curb line of Delmar, when track. She was not particularly acquainted he saw this car turning around the corner on with how the cars were operated on the this curved track, and when the front end of Union avenue line. The width of these the car was about even with him he heard streets, or the distance the car tracks are some women scream. The car went a few from the curbing, is not disclosed by the evi- feet further, and stopped. He went around dence. She said she had never seen a south- the rear end, and saw two women near the bound car turn westwardly on this curved curb line. The car traveled about 50 feet track at that point prior to the accident. from the time it started until it stopped. He She did not see the car from which she had did not identify either of the women as plainalighted start again until, as she says, it tiff, nor did he fix the date of the occurrence was "right on me." She did not hear the which he witnessed, except to say that it car approaching, nor any gong or bell sound- was some time late in December, 1922. He ed. When struck, she was knocked down, stated that the bell on the car was ringing. and her back and shoulder were injured, as Dr, Ambrose was called by the defendant, well as other parts of the body. She was and said he had examined the plaintiff the confined to her room under the treatment of day before the trial, and was unable to disdoctors for about two weeks. She was work- cover any sign of injury. ing at the Statler Hotel, and receiving $100 The assignments of error urged in this a month, with her meals furnished. She tes-court are that the court erred in not directtified that she lost $50 in wages. She stated, ing a verdict for defendant, and in giving with respect to the effect of her injuries, at certain instructions. The objections made the time of the trial:

to all instructions except one are based up"Why, my nerves are all to pieces, and my

on the assumption that the peremptory inback hurts me at night, and after I sit for å struction should have been given to find for long time I have severe pains in my shoulder, defendant. Complaint is further made that and any change of weather bothers me very the verdict was excessive, and that it was much, as though it might be rheumatism." error to give plaintiff's requested instruction

on the measure of damages, because such Dr. Willhite testified that he was called to permitted the jury to consider the permanentreat plaintiff when she received her inju-cy of plaintiff's injuries, when there was no ries; that plaintiff informed him that she substantial evidence that plaintiff's injuries had headache, and pain in the right shoulder were permanent. and back; and that he could see that she was [1] Defendant's argument that plaintiff

He treated her from the 27th of was guilty of contributory negligence as a December, 1922, until the 8th day of Jan- matter of law is based upon the proposition uary, 1923. He stated that he bandaged her that plaintiff, who looked both east and west shoulder, and noticed bruises thereon; that up and down Delmar while she was standthe condition in the shoulder may cause pain ing near the gaslight post at the northwest in the future; that he put adhesive straps corner, should have seen this car approachon her back and near the dorsal region, and ing, and did see it if she actually looked, or, that these were on her when he quit treating if she did not look, that she should have done her; that he diagnosed the case at that time so, and should have anticipated that the car as a wrenched back. His bill amounted to was likely to turn there and injure her, and, $34, which had not been paid. He also stat- having failed to do so, she must be declared ed that he found a bruise on her left knee. guilty of negligence, such as to bar her right

Dr. E. B. Kinder testified that he was call- to recovery. To support this contention we ed to treat plaintiff on the 18th day of Jan-are cited to such cases as Rose v. Wells (Mo. uary, 1923; that he found some inflamma- | App.) 266 S. W. 1015, Costello v. United Rys. tion of the right shoulder joint, owing to Co. (Mo. App.) 213 S. W. 179, Gubernick v. pain caused by inflammatory trouble, and United Rys. Co. (Mo. Sup.) 217 S. W. 33; found some injury to the sacroiliac joint, and many others. But none of these cases and some bruises and lacerations on the fit the facts of this case. In the majority left knee, and some injury to the left shin of the cases cited by defendant the accident bone below the knee. At the time of the tri- happened in daytime, and at places where al he testified she still had some inflamma- the injured party was approaching a street tory condition in the shoulder and in the or railroad crossing at right angles, when he sacroiliac joints, and that such a condition or she saw or could have seen the street car would be likely to cause pain in the future, or train approaching, and there was no more and in all probability would trouble the pa- than the one track to deal with. Where

273 S.W.-9


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