
    JOHN BRECKENRIDGE, Respondent v. WHITE & COMPANY, Appellants.
    Kansas City Court of Appeals,
    April 7, 1902.
    1. Trial Practice: PLEADING: EVIDENCE: INSTRUCTION: LOSS OE INSURANCE. The action was on a note. The defense was, the plaintiff as mortgagee failed to make proof of the loss by fire of the property covered by the mortgage made to secure the note and the insurance was thereby lost. The evidence showed timely presentations of proofs by the plaintiff and the insolvency of the insurance company, but that pressure by the plaintiff would have secured payment of the insurance. The court gave a peremptory instruction for the plaintiff. Held, instruction was proper since the pleading presented no issue save the failure to make proofs and that was without evidence.
    2. Negligence: COMMON DUTY: MORTGAGOR AND MORTGAGEE: LOSS OE INSURANCE. Where duty rests alike upon two, one can not charge the other with negligence in failing to do it since he could have had the right to do it himself; so a mortgagor can not charge a mortgagee with negligence in failing to collect the insurance on the mortgaged property when he had equal right to collect himself.
    Appeal from Lafayette Circuit Court. — Hon. Samuel Davis, J udge.
    Affirmed.
    
      John S. Blackwell & Son for appellants.
    (1) Respondent admitted that if the president and secretary of the company were present in court as witnesses they would testify that for some months after the fire, which occurred December 29, and for some months after February 15, the time when the proof of loss was filed, the company was able to and did pay claims; that the claim had never been presented to the assignee, and that if it had been presented to him within a reasonable time after his appointment, the same or the greater portion thereof would have been paid. The case ought not to have been taken from the jury, because the jury are the exclusive judges of the weight and sufficiency of the evidence. MeKown v. Craig, 39 Mo. 156; Baum v. .Eryrear, 85 Mo. 151; Taylor v. Short, 38 Mo. App. 21; Gutridge v. Railroad, 105 Mo. 520; Culverson v. City of Maryville, 67 Mo. App. 343; Jackson v. Hardin, 83 Mo. 175; Gregory v. Chambers, 78 Mo. 298; Wolff v. Campbell, 110 Mo. 114; Cleveland & Aurora Company v. Ross, 135 Mo. 101; Patterson, v. Railroad, 47 Mo. App. 570; Stewart v. Sparkman, 69 Mo. App. 456. (2) It is the well-settled rule in this State that if there is any evidence at all to support the allegations of an answer that states a defense, it is error to give a peremptory instruction. Owens v. Rector, 44 Mo. 389; Benton v. Klein, 42 Mo. 97; Vaulx v. Campbell, 8 Mo. 224; Lumber Company v. Christophel, 62 Mo. App. 98.
    
      M. G. ShewaU&r and William Aull for respondent.
    (1) The peremptory instruction given by the court was properly given. Under the law and the evidence there was no other alternative. The execution of the note was admitted and the evidence of appellant White, as well as that of all witnesses offered by respondent, conclusively disproved the alleged negligence set forth in the answer. Atkinson v. Milk Co., 44 Mo. App. 153; Wolff v. Campbell, 110 Mo1. 114; Clemens v. Dryden, 6 Mo. App. 597; Adams County Bank v. Hainline, 67 Mo. App. 483; Huttig Sash and Door Co. v. Gitchell, 69 Mo. App. 115; Clemens v. Knox, 31 Mo. App. 185; Kauffman v. Christophel, 62 Mo. App. 98; Stephens v. Co., 67 Mo. App. 587; Erankenthal v. Goldstein, 44 Mo. App. 189; Mitchell v. Co., 116 Mo. 226. (2) An instruction not based on the pleadings is properly refused. Morman v. Bender, 80 Mo. 579; Nugent v. Curran, 77 Mo. 323; Brown v. Railroad, 101 Mo. 484; Elint Walling Mfg. Co. v. Ball, 43 Mo. App. 504; Railroad v. Railroad, 118 Mo. 599’; Jacquin v. Cable Co., 75 Mo. App. 320; Matson v. Erazer, 48 Mo. App. 302; Scott v. Allenbaugh, 50 Mo. App. 130. (3)' There can be no evidence on which to base an instruction if such evidence overthrows the pleadings of the party who introduced it. Capital Bank v. Armstrong, 62 Mo. 59 ; Bank v. Murdock, 62 Mo. 70. (4) An issue not made by the pleadings can not be thrust into the cause by instructions. Glass v. Gelvin, 80 Mo. 297; Nall v. Railroad, 97 Mo. 68; Tetherow v. Railroad, 98 Mo. 74; Brown v. Railroad, 31 Mo. App. 661; Nelson Mfg. Co. v. Mitchell, 38 Mo. App. 321; Bender v. Dungan, 99 Mo. 126. (5) Notwithstanding the admission of evidence not within the pleadings, the instructions must be based upon the pleadings. Mosman v. Bender, 80 Mo. 579; Aultman-Taylor Oo. v. Smith, 52 Mo. App. 351; Bank v. Westlake, 21 Mo. App. 565; Nugent v. Curran, 77 Mo. 323; Matson v. Erazer, 48 Mo. App. 302; Scott v. Allenbaugh, 50 Mo. App. 130. (6) Appellants, if they so desired, could have sued on the policy or filed claim before assignee. They had the right to require respondent to do' so. Anthony v. Ins. Oo., 48 Mo. App. 65; Megher v. Stewart, 6 Mo. App. 500; Harney v. Dutcher, 15 Mo. 93; Rogers v. Gosnell, 51 Mo. 466.
   BROADDUS, J.

The plaintiff brought this action to recover the principal and interest of a note executed by the defendants and payable to him for the sum of $675 dated April 19, 1898, and due in twelve months after date. The answer admits the execution of the note but sets up in defense the following facts, viz.: That the defendants had assigned to the plaintiff a certain policy of insurance issued to the defendants by the Town Mutual Insurance Company of Excelsior Springs, Missouri, for $800, indemnifying them for loss by fire on their mill at Waverly, Missouri; that the loss if any, was made payable to the plaintiff, as mortgagee, who held a mortgage from defendants to secure the payment of the note in suit; that on December 29, 1898, said mill was destroyed by fire; that plaintiff negligently failed and refused to make proof of loss and converted the policy to his own use thereby preventing defendants from making such proof of loss; and that by reason of said negligence of plaintiff and said conversion of said policy, defendants were damaged $800, which they plead as a setoff and counterclaim against plaintiff’s demand. The plaintiff’s reply put in issue the allegations of the defendants’ answer.

The evidence was undisputed that there was a fire which destroyed the defendants’ mill, upon which the plaintiff held a mortgage to secure the payment of said note; that Breckenridge, through defendant White, duly made proof of loss which was filed with the said insurance company at its place of business at Excelsior Springs, Missouri; and that some-time in April, 1899, the said company made an assignment. The defendants offered evidence tending to prove that if the plaintiff had pressed the claim for said loss that all, or a greater part thereof, would have been paid. On the other hand the evidence of the plaintiff was to the effect that the insurance company was wholly insolvent.

The court gave several instructions amongst which was one that the jury would find for the plaintiff for the amount of the note and interest. The defendants. contend that the giving of said instruction was error for the reason that there was evidence tending to show that the plaintiff, by the exercise of diligence, could have collected a part of said insurance. And we are cited to many authorities to sustain the proposition that where the evidence is conflicting it is error for the trial court to give a peremptory instruction upon the issue. The soundness of this position can not be controverted, for the law, as a general proposition, is well settled in this State. . But it seems to us that the application of the rule is not proper in this case for the reason that there was no issue made by the pleadings that the plaintiff had negligently failed or refused to collect the policy, but that he had negligently failed to p'ove the loss by fire. It is true that both parties had introduced evidence upon the question not put in issue by the pleadings, but it seems that notwithstanding such evidence the plaintiff sought to hold the defendants to the real issue by asking and obtaining said peremptory instruction. And we must presume that the court, by the giving of said instruction, intended to confine the parties to the real issue so made by the pleadings. It would set a bad example for this court to reverse the action of a trial court in giving instructions ignoring evidence not responsive to the issues, for as a rule no such evidence should be offered and admitted. As all the evidence tended to show that the plaintiff timely and duly made proof of loss and filed it with the insurance company, there were no' controvertible facts arising on the pleadings; therefore, the giving of said instruction was justifiable.

The respondent insists further that the judgment should be affirmed on the ground that under the law the defendants had the same right to prosecute the collection of the claim for insurance as the plaintiff had, and that such being the case the plaintiff is not chargeable with negligence when it is shown that if there was any such negligence, that of the defendants was equal to that of the plaintiff. It is a rule of reason and right, as well as law, that where the same duty rests equally upon two persons to do or not to do a particular thing, one of the parties can not have a remedy against the other for failure to do or not to do the particular thing, for the reason that he, himself, ought to have acted or refrained from acting, as the case might be. In Anthony v. Ins. Co., 48 Mo. App. 65, it was held that in an insurance policy which was made to A, and payable to S the mortgagee, that A was a trustee of the express trust and S the beneficiary thereof, and that either or both could maintain an action on the policy, and a recovery by either would bar any further action. And a similar principle was applied in Rogers v. Gosnell, 51 Mo. 466. It follows, therefore, that the defendants were not in a position to charge the plaintiff with negligence for failure to do an act which, under the law, it was as much their duty to do as it was that of the plaintiff.

It seems to us that under no sound theory of the case can the action of the lower court be successfully assailed'. Cause affirmed.

All concur.  