
    J. W. BURTON, Respondent, v. AMERICAN GUARANTEE FUND MUTUAL FIRE INSURANCE COMPANY, Appellant.
    Kansas City Court of Appeals,
    June 9, 1902.
    
      X Insurance: INSTRUCTIONS: “IRON-SAFE CLAUSE:” SPOLIATION. In an action on a fire policy, an instruction purporting to cover the whole case omitted an issue tendered in regard to the spoliation of the policy by cutting therefrom an “iron-safe clause” rider; but this latter issue was ijointedly submitted to the jury by another instruction. Held, taking all the instructions together, they properly presented the entire case to the jury.
    :2.-: INSTRUCTION: CLERICAL MISTAKE: HARMLESS ERROR. An instruction as to proof of loss used the word- “two,” which was evidently a clerical mistake for “due.” Held, harmless error.
    
      :3. Trial and Appellate Practice: VERDICT: PREJUDICE OF JURY. On a review of the record the appellate court refuses to interfere with the verdict on the ground of the prejudice and passion of the jury, especially since it received the sanction of the trial court.
    Appeal from Camden Circuit Court. — Hon. Argus Cox, Judge.
    Affirmed.
    
      J. W. Farris for appellant.
    (1) Instruction No. 1 given by tbe court, purports to cover tbe whole case, and authorized a recovery by plaintiff, if tbe jury should find tbe facts for plaintiff as hypothecated in tbe instruction. Tbe instruction left out of view tbe question as to tbe iron-■safe and inventory clause, and also tbe question of tbe •mutilation of tbe policy, to disprove which tbe burden was placed upon tbe plaintiff. This issue was raised by the pleadings and should have been submitted to the jury as it was a question of fact whether or not the policy contained the iron-safe and inventory clauses and also whether- the policy had been mutilated and changed. These questions were presented to the jury in another instruction, but the two instructions can not, therefore, be considered together as presenting the whole case, and plaintiff was permitted to recover irrespective of whether the policy contained the iron-safe and inventory clauses, or whether the policy had been mutilated. Roberts v. Ins. Co,, decided in the St. Louis Court of Appeals March 1, 1902; Burton v. Ins. Co., 88 Mo. App. 395. (2) “Such a verdict can be accounted for only on the ground of ignorance, partiality, prejudice or passion, and can not be permitted to stand.” Gannon v. Gas Company, 145 Mo. 545; Long v. Moon, 107 Mo. 334; Caruth v. Richeson, 96 Mo. 186; Avery v. Fitzgerald, 94 Mo. 207; Garrett v. Greenwell, 92 Mo. 120; Spohn v. Railroad, 87 Mo. 74; Whitsett v. Ransom, 79 Mo. 258. (3) The court instructed the jury for plaintiff, “that if you believe from the facts and circumstances in evidence . . . that plaintiff gave due notice of same and made two proofs of loss.” The jury could not find from the evidence what the court required, as the evidence showed he made due proofs of loss, and the verdict is contrary to the instructions, as well*as against the evidence, and is clearly the result of ignorance, partiality, passion or prejudice, and the appellate court should reverse the judgment.
    
      Nixon & Moore for respondent.
    (1) The mistake in this instruction in copying, requiring “two proofs of loss,” is evidently merely clerical, and was intended for “due proofs of loss.” (2) The instructions are not contradictory. (3) It was not possible for the jury to have been misled by first instruction, or that any injury was done the defendant by giving it. The other instructions are certainly radical and drastic in favor of the defendant. (4) Any supposed fault in the first instruction was cured by subsequent instructions. Instructions should be considered all together. Schrader v. Michel, 98 Mo. 48; Vogel v. Railroad, 49 Mo. App. 643; Schaf v. Fries, 77 Mo. App. 346; Grace v. Railroad, 156 Mo. 275. (5) The only attack on the verdict in the motion for a new trial is that it is against the weight of evidence. Heine v. Morrison, 13 Mo. App. 577; Varton v. Goodwin, 42 Mo. App. 39; Alexander v. Railroad, 55 Mo. App. 66; Putnam v. Railroad, 22 Mo. App. 589; Huppart v. Weisgerber, 25 Mo. App. 95; Stone v. Wolf-hall, 59 Mo. App. 441. (5) It is the peculiar duty of trial judges to pass on the question whether the verdict was the result of passion, prejudice or misconduct of the jury. Choquette v. Railroad, 152 Mo. 257; Benedict v. Railroad, 123 Mo. 221; Culver v. Smith, 82 Mo. App. 390; Reid v. Ins. Co., 58 Mo. 421; Temple v. Railroad, 83 Mo. App. 64; Tower v. Penley, 76 Mo. App. 287; Moffitt v. Freeman, 119 Mo. 294.
   ELLISON, J.

This is.an action on a fire insurance. policy. Plaintiff recovered judgment in the trial court. He had recovered judgment on a former trial which was reversed by the St. Louis Court of Appeals. On return of the mandate of that court, plaintiff changed the venue to Camden county.

The contention on the part of defendant was that there was what is known as an “iron-safe clause” attached to the policy when delivered to plaintiff, and that the policy as produced by plaintiff at the trial showed no such clause. It appeared from the policy that this had been torn or cut off from the policy. This, as ruled by the St. Louis Court of Appeals in this case, put the onus on plaintiff to disprove or explain the spoliation. 88 Mo. App. 392.

There was strong evidence supporting defendant’s claim of spoliation. Yet the trial court gave, over defendant’s protest, an instruction submitting to the jury in detail the facts necessary for plaintiff to prove in order to recover, and directing that if such matters were proven to the satisfaction of the jury to find for plaintiff.

The question of the iron-safe clause, which defendant charged had been torn or cut from the policy after its delivery, and which the appearance of the policy prima facie substantiated, was omitted from this instruction, the jury being directed to find for plaintiff without referring to that issue. This would have been error but for the fact that in other instructions that issue was pointedly submitted and the jury clearly informed that plaintiff could not recover unless he established that there was no spoliation in his hands. Ever since the case of Sullivan v. Railroad, 88 Mo. 182, was overruled by the case of Owen v. Railroad, 95 Mo. 169, it has been understood and ruled in this State that although one instruction purporting to cover the whole case omitted an issue tendered by the opposite party, yet if it was clearly submitted in other instructions, so that taking them as a whole they presented the entire case, such omission was not reversible error.

Another ground of complaint is that the court, in an instruction, used the words, “made two proofs of loss.”. The word “two” was evidently, by clerical, error, used for “due.” We do not regard the objection as of substantial merit.

It is next insisted that the verdict is against the evidence and is the result of prejudice and passion. We have gone over the record and do not find that we would be justified in overturning the verdict on this ground, especially as it has received the sanction of the trial court. We have found nothing to warrant our interference and, hence, affirm the judgment.

All concur.  