
    John C. Spencer, Respondent, v. Farmer’s Mutual Insurance Company, etc., Appellant.
    St. Louis Court of Appeals,
    February 21, 1899.
    Instruction: practice, trial. -In the ease at bar, an instruction was asked by defendant which was more in the nature of a charge to the jury, than an instruction; held that it was properly refused by the trial court, and where there is no reversible error in the record the judgment will be upheld.
    
      Appeal from the Lawrence Circuit Court. — Hon. J. C. Lamson, Judge.
    Affirmed.
    William B. Skinner and Henry Brumback for respondent.
    Defendant misconceives plaintiff’s pleading, and hence error in her argument. She says, page 3, “plaintiff asserted that his property was accidentally burned.” He does not say accidentally but only says that it was “destroyed and consumed by fire.” He contends that he does not need to have pleaded that it was by accident; but if he did, defendant should have demurred, and the petition is at least good after verdict, and is moreover cured by defendant’s affirmative plea that it was purposely and negligently burned. Bank v. Leyser, 116 Mo. loe. cit. 73. The evidence sustained the issues in favor of plaintiff. The instructions fairly submitted the issues, and the verdict is for the proper party. Defendant made the contract and admitted it; the property was burned, and defendant admitted it; plaintiff proved the amount of his damage, though it was not by defendant denied, and it was not really in issue; defendant pleaded (or rather attempted to) that the contract was fraudulently obtained, and offered no evidence on the point; defendant pleaded that the fire was intentional and plaintiff negligent, and offered evidence supposed to tend to sustain the plea, and plaintiff put in evidence showing that it was an accident, and the question was fairly submitted to the Jury. Such verdict will not be disturbed. Norton v. Paxton, 110 Mo. 456.
    W. Cloud and Joseph French for appellant.
    The burden of proof means the burden of establishing the case. McCartney v. Ins. Co., 45 Mo. App. 373. The burden of proving a fact is on the party who asserts the affirmative of the issue. And in this case the plaintiff asserted that his property was accidentally burned, and that it was of the value named in application. Glover v. Henderson, 120 Mo. 367. In this case the knowledge of the origin of the fire, how it occurred, and the value of the property, was solely within the knowledge of the plaintiff. And tho rule is that where the facts are peculiarly within the knowledge of a party such party ought to be required to show them. Frame v. Sovereign Camp, 67 Mo. App. 127; 1 Greenleaf [13 Ed.], secs. 74-79. The burden of proof should be fixed by th© pleadings. In tbis case tbe plaintiff alleged that bis property bad been accidentally burned. (Tbis being tbe only burning insured against.) And tbe defendant denied such burning, and also denied tbe goods burned being of tbe value named in tbe application or in tbe policy. See Bunker v. Ilibler, 49 Mo. App. 536. No new matter was set up in tbe defense of tbis case, but simply a denial of tbe allegations of plaintiff’s petition. This action arose upon a contract between tbe plaintiff and tbe defendant, wherein tbe plaintiff, for certain consideration, was insured against fire and lightning by accident. And it was as much tbe business of plaintiff to show tbe manner of tbe fire, and that it was by accident, as it was to show that there was a fire at all. Siebert v. Chosen Friends, 23 Mo. App. 268.
   BLAND, P. J.

Defendant is a mutual fire insurance company organized under tbe provisions of section 5909, Devised Statutes 1889. Tbe petition declared that plaintiff was a member of said company, and that on November 11, 1895, tbe defendant for a valid consideration insured bis property against loss by fire for a period of five years as follows: $200 on bis frame dwelling bouse; $100 on one frame “L.” thereto; and $200 on tbe contents of said building; that on tbe thirty-first day of July, 1891, while tbe contract of insurance was in force, all of said property was wholly destroyed by fire, “to tbe loss and damage of tbis plaintiff in tbe sum of seven hundred and fifty dollars and more, to wit, to tbe loss and damage of plaintiff on the said frame dwelling house three hundred dollars, and more, on tbe said “L.” thereto one hundred dollars and more, and on tbe contents of said buildings three hundred dollars and more; that plaintiff has in all things complied with bis part of tbe said contract of insurance, but defendant has refused to pay said loss, though often requested, wherefore. * * *

Tbe answer is as follows: “Defendant’s answer admitted that plaintiff had, upon a written application, become a member of said company, and that it had issued a certificate of membership to plaintiff, upon the representation of plaintiff that he was the owner of the property mentioned in the application, and that it was of the character and value represented in -his application, and upon the conditions contained in the constitution and by-laws of said company. And his written application, a copy of said written application, ana constitution of said company, was made a part of said answer. And defendant alleged that plaintiff was not the owner of the property as represented, and that it was not the character of property described in the application and that it was not of the value therein represented; and that the loss did not occur by accident, but that it was caused and permitted by the plaintiff’s gross negligence, for the purpose of recovering the amount claimed, and denied all other allegations in plaintiff’s petition.”

Plaintiff’s replication was a general denial of all new matter in the answer. Trial was had by a jury, which resulted in a verdict and j'udgment for plaintiff, from which this appeal was taken.

The evidence introduced on the part of plaintiff tended to prove that the origin of the fire by which his house and its contents were destroyed, was accidental, and not occasioned by his negligence. He also introduced evidence of the value of his house at the time of the fire, and of the quantity, quality and value of its contents which were consumed. Defendant’s evidence tended to prove .that the fire was occasioned by the gross negligence of the plaintiff. The court gave the following instructions for plaintiff, to which defendant excepted on the trial, and the giving of which it assigns as error, to wit:

“1. The court instructs you that the defendant admits that it made the contract of insurance which is sued upon, and that the buildings insured were wholly, and the contents of the buildings were partly, destroyed by fire, and under the pleadings you must find for the plaintiff, unless you believe from the evidence that the plaintiff purposely permitted his said property to bum up, or else that he did not use such reasonable efforts to put out or to prevent the fire as a man of ordinary prudence would have used under all the circumstances.”

“2. The court instructs you that in this case the defendant admits that it issued and made the policy sued upon and that the buildings insured were wholly, and the contents partly, destroyed by fire, as claimed by the plaintiff, and the defendant sets up for defense that plaintiff purposely or negligently permitted the property to be burned, and also that the property was of less value than named in the policy; and you are instructed that the burden lies upon the defendant to prove by a preponderance of evidence such defense before you can find for the defendant on account thereof.”

I. Appellant contends that instruction number 1 incorrectly states the admissions made by the answer. There is no direct admission of the issuance of the policy sued on, but its issuance and existence as a live policy when the fire occurred, is not denied, and it is specifically admitted that plaintiff was a member of the company and held a certificate of membership. This is tantamount to an admission of the issuance of a policy, as plaintiff could not be a member of the company without at the same time being a policy holder therein, since such companies are composed solely of policy holders. The petition avers a total destruction of the dwelling and a total destruction of a part of its contents;- this averment is not denied by the answer, but it is inferentially admitted by the averment in the answer, that plaintiff’s loss was caused and permitted by the plaintiff’s gross negligence. The admissions named in the instruction are derived from the pleadings, and it is correct.

II. - Appellant complains of tbe second instruction, because it told the jury the burden was on defendant to prove by a preponderance of tbe evidence tbat tbe property was purposely or negligently burned, and tbat tbe property was pi less value than named in tbe policy. Tbe petition alleged a total loss by fire, but it did not allege tbe origin of tbe fire. Tbe answer alleged tbe loss was caused purposely, or by the gross negligence of tbe plaintiff. Tbe loss by fire was not denied; tbat fact stood'admitted, and it was not incumbent on plaintiff to negative tbe affirmative defense of a willful setting of tbe fire or negligently permitting it. Erom tbe mere fact tbat tbe property burned, an inference can not be drawn tbat plaintiff set bis bouse on fire, to indulge such a presumption would be to presume tbe plaintiff guilty of arson; tbe presumption is to tbe. contrary, tbat is, tbat tbe plaintiff acted lawfully. Payne v. Railroad, 129 Mo.

105; nor can the existence of negligence be inferred from tbe mere fact of tbe destruction of tbe property by fire. Tarnell v. Eailroad, 113 Mo. loc. cit. 570, and cases cited. Tbe defense was an affirmative one put in issue by tbe reply, and tbe burden was on tbe defendant to establish it by a preponderance of tbe evidence. Tbe paragraph of tbe instruction which told tb© jury tbat tbe burden was on tbe defendant to prove tbat'the property was of less value than tbat named in tbe policy, refers to- the defense of a fraudulent valuation of the property by plaintiff when be procured tbe policy, and was favorable to tbe defense. Tbe third instruction correctly directed the jury as to tbe measure of plaintiff’s damages should they find for him, and tbe instructions given for defendant fairly and fully instructed tbe jury on tbe defenses set up in tbe answer. Number 9 asked by defendant and refused by tbe court is more in tbe nature of a charge to tbe jury than an instruction, and was therefore properly refused. Perceiving no reversible error in tbe record, tbe judgment is affirmed.

All concur.  