Brooks v. Standard Fire Insurance

Missouri Court of Appeals

Brooks v. Standard Fire Insurance

11 Mo. App. 349, 1882 Mo. App. LEXIS 88

CourtMissouri Court of Appeals

DecidedJanuary 17, 1882

StatusPublished

Cited by5 cases

This text of 11 Mo. App. 349 (Brooks v. Standard Fire Insurance) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brooks v. Standard Fire Insurance, 11 Mo. App. 349, 1882 Mo. App. LEXIS 88 (Mo. Ct. App. 1882).

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Opinion

Thompson, J.,

delivered the opinion of the court.

This is an action upon a policy of fire insurance on a flouring mill. It contains the following warranty in writing: “ Warranted by the assured that there shall be a watchman kept on the premises at night and on Sundays.” The evidence shows that no person was employed to watch in the mill at night, but that a person was employed by a company which occupied a part of the mill in the manufacture of itacolumite or emory wheels, to work for them during the day and to sleep in the mill at night. The court refused to instruct the jury that a person thus employed was not a watchman, but left it to them to say whether he was a watchman or not. We think this was error. We do not need a dictionary, nor a law-book, nor the testimony of an expert, to tell us that a man who is employed to work in the daytime, and who is permitted to sleep at night, is not a watchman at night. Where the construction of a contract upon which the rights of parties litigant depend is drawn in question, it is the duty of the court to expound its meaning to the jury, and it is error to leave its meaning to be determined by them; and if the construction of a contract is left to the jury, and they construe it wrongly, it will be ground for reversing the judgment. That was clearly the case here. [351]*351immateriality of the fact warranted.” Loehner v. Insurance Co., 17 Mo. 255; Mers v. Insurance Co., 68 Mo. 131. There was in this case no fulfilment of the warranty. There was, hence, upon the case as made by this record, no liability on the part of the defendant. Glendale Woollen Co. v. Insurance Co., 21 Conn. 19 ; First National Bank v. Insurance Co., 50 N. Y. 45.

[350]*350“ A warranty is apart of the contract, and must be exactly and literally fulfilled. It is in the nature of a condition precedent, and no inquiry is allowed into the materiality or

[351]*351This question being, in our judgment, decisive of the case, it is not right that we should take time which belongs to other suitors to examine the other questions made by the record. The judgment is reversed and the cause remanded.

Judge Bakewell concurs; Judge Lewis is absent.

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Thompson, J.,

delivered the opinion of the court.

This is an action upon a policy of fire insurance on a flouring mill. It contains the following warranty in writing: “ Warranted by the assured that there shall be a watchman kept on the premises at night and on Sundays.” The evidence shows that no person was employed to watch in the mill at night, but that a person was employed by a company which occupied a part of the mill in the manufacture of itacolumite or emory wheels, to work for them during the day and to sleep in the mill at night. The court refused to instruct the jury that a person thus employed was not a watchman, but left it to them to say whether he was a watchman or not. We think this was error. We do not need a dictionary, nor a law-book, nor the testimony of an expert, to tell us that a man who is employed to work in the daytime, and who is permitted to sleep at night, is not a watchman at night. Where the construction of a contract upon which the rights of parties litigant depend is drawn in question, it is the duty of the court to expound its meaning to the jury, and it is error to leave its meaning to be determined by them; and if the construction of a contract is left to the jury, and they construe it wrongly, it will be ground for reversing the judgment. That was clearly the case here. [351]*351immateriality of the fact warranted.” Loehner v. Insurance Co., 17 Mo. 255; Mers v. Insurance Co., 68 Mo. 131. There was in this case no fulfilment of the warranty. There was, hence, upon the case as made by this record, no liability on the part of the defendant. Glendale Woollen Co. v. Insurance Co., 21 Conn. 19 ; First National Bank v. Insurance Co., 50 N. Y. 45.

[350]*350“ A warranty is apart of the contract, and must be exactly and literally fulfilled. It is in the nature of a condition precedent, and no inquiry is allowed into the materiality or

[351]*351This question being, in our judgment, decisive of the case, it is not right that we should take time which belongs to other suitors to examine the other questions made by the record. The judgment is reversed and the cause remanded.

Judge Bakewell concurs; Judge Lewis is absent.

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