* Headnote 1. Fire Insurance, 26 C.J., Section 774; 2. Evidence, 23 C.J., Section 1792: 3. Evidence, 22 C.J., Section 347. This is a suit on a policy of fire insurance in the sum of One Thousand Dollars issued by defendant on a stock of merchandise owned by plaintiff and located in a frame building at 1214 So. Sixth Street in St. Joseph, Missouri. The policy was issued for one year beginning at noon July 1, 1920. On February 11, 1921, at about three o'clock in the morning and while said policy was in force, part of said stock of merchandise was greatly damaged and much of it totally destroyed by fire. The petition prays judgment for $1000, and for statutory penalty for vexatious delay and attorney fees.
The amended answer alleges (1) several objections to proof of loss furnished by plaintiff, (2) that plaintiff refused to submit to arbitration under the provisions of the policy, (3) that defendant was liable only for its proportionate part of the damage or loss, and (4) that plaintiff "burned or caused to be burned the property described, causing the damage and destruction thereof." The reply was a general denial.
On the trial the court, by instructions, eliminated all the special defenses pleaded except the fourth, as enumerated above. At the close of the case plaintiff asked the following instruction which the court refused to give: "Y. The court instructs the jury that there is no evidence in this case upon which to base a verdict that plaintiff burned or caused to be burned the merchandise insured by the policy sued on herein." *Page 566
The jury returned a verdict for defendant. Plaintiff's motion for a new trial was sustained, the court assigning as its reason therefor: ". . . because of giving defendant's instructions 2 and 3, and in refusing plaintiff's instruction "Y," and in excluding the testimony in reference to an offer made by one Harris to settle for the loss of fire." From this ruling of the court defendant appeals.
All other defenses pleaded having been eliminated at the trial, and no exception saved to such ruling of the trial court, the only question presented for our consideration is as to whether the action of the court in sustaining plaintiff's motion for a new trial was proper. The solution of this question must be based upon the sufficiency of the evidence to warrant submission to the jury of the question as to whether or not plaintiff burned, or caused to be burned, the merchandise covered by the policy sued on.
Instructions numbered 2 and 3 for defendant, mentioned in the court's ruling, refer to the same question as contained in the refused instruction "Y" offered by plaintiff. A ruling on the latter will necessarily carry with it our decision as to the former.
In our consideration of the only question involved in this appeal, it will be necessary briefly to review the evidence bearing on the same. It may be well to note at this point that defendant relied upon circumstances to establish its defense.
The testimony tends to show that plaintiff had been accustomed to sleeping in his store and did so until a short time before the fire; that shortly before the fire he had rented other quarters for sleeping purposes. Plaintiff explained this change by saying he was expecting his family from Europe to join him shortly, and that the store was not a suitable place for them. It is also in evidence that plaintiff ate his lunch at a restaurant adjoining his store at 1:30 on the morning of the fire, which occurred, as stated above, at 3 o'clock a.m. It also is in *Page 567 evidence that plaintiff was seen on the sidewalk in front of the restaurant at 12:06 a.m. of that day, and that he proceeded up the street in the direction of his home.
Another witness testified that plaintiff was seen about 1:00 a.m. on the morning of the fire in the railroad yards nearby, by one Murray, a watchman for an industrial plant, and that plaintiff had his collar turned up. (It was the month of February.) That plaintiff did not respond to his first challenge, but did to his second, and then stated he was searching for his lost dog. That plaintiff then proceeded in the direction of his home. The witness Murray further stated that in about thirty minutes after the conversation between him and plaintiff, he noticed the fire in the neighborhood of plaintiff's store and on passing the store the next morning he saw that it had burned. This testimony would tend to show plaintiff's presence in the vicinity of his store shortly before the fire. This testimony was denied by plaintiff.
There was also another circumstance which defendant insisted was at least suspicious and tended to show that plaintiff burned, or caused to be burned, his stock of merchandise. One J.W. Coale testified he had left a pair of shoes with plaintiff and shortly prior to the fire, he had visited plaintiff's store to get the shoes; that plaintiff told him to hunt for them, which he did, and that in the search he found some empty shoe boxes on the shelves and that he had joked plaintiff about the matter and plaintiff had answered that that was a way he had of enlarging his stock, saying "you can't get ahead of a Jew." This witness testified that he understood plaintiff's reply was a joke.
Testimony was presented by plaintiff in explanation of the empty shoe boxes which tended to show that while an inventory was being made after the fire, no unusual number of empty boxes was found.
This was practically the extent of the testimony upon which the case was sent to the jury upon the only *Page 568 question in the case, and plaintiff's instruction "Y" refused.
A member of the fire department who attended the fire on call stated he was on the scene within two minutes after the alarm was received, and that there was nothing to indicate how the fire had started; that he knew nothing about its origin and saw nothing unusual in the situation there present.
Whether or not the facts and circumstances related by these witnesses are merely suspicious, depends largely upon the viewpoint of the party presenting or opposing them. This being a suit at law, the defendant is required, under the rules of evidence, to prove his case merely by a preponderance of the evidence. The distinction between the requirements in civil and criminal cases is ably and minutely discussed in State ex rel. v. Ellison, et al., 268 Mo. 239. In the case at bar the question is not as to whether or not a crime has been committed. The question is merely one of greater or less probability, and the jury in order to find for defendant needed to be satisfied of plaintiff's complicity in the burning of the merchandise, to the same degree and in the same manner as in any civil case. This is the rule declared by the Supreme Court in Rothschild v. Insurance Co.,62 Mo. 356, and it has been followed ever since by courts of appeal in this State.
The question for our determination than, is: Did defendant, in support of its plea that plaintiff burned his property, or caused it to be burned, make a showing that entitled it to go to the jury? It is said in Fritz v. Railroad, 243 Mo. 62, l.c. 77:
"In circumstantial evidence the principal and ultimate fact is got at by way of argument and by method of demonstration in the nature of reductio ad absurdum. [Will's Cir. Ev., p. 17.] Therefore, in cases turning on circumstantial (or what is called by civilians oblique and by the Scotch jurists argumentative evidence, the proof should have a tendency to exclude any other reasonable *Page 569 conclusion than the principal fact. Says the author just quoted (p. 17), HUGHES, J., in Mussolwhite v. Receivers, 4 Hughes (U.S. Cir. Ct. Rep. l.c. 169): `The force and effect of circumstantial evidence depend upon its incompatibility with, and incapability of, explanation or solution upon any other supposition than that of the truth of the fact which it is adduced to prove.'"
The facts presented by the record herein, when tested by the principles above enunciated, clearly indicate the defendant did not sufficiently show incendiarism in the destruction by fire of the property insured. In fact, as we view the evidence, there is no substantial showing that the origin of the fire was due to other than accidental causes. True, as stated above, there were some suspicious circumstances on the part of plaintiff, but he explained these, at least to his own satisfaction, and we think sufficiently to entitle him to the operation of the rule announced in the Fritz case.
We hold, therefore, the trial court was not in error in sustaining plaintiff's motion for a new trial on this ground.
One other point remains to be considered which we shall notice though it may not arise on the retrial of the case. During the progress of the trial the court refused to permit plaintiff to testify as to an amount offered him in settlement of his claims by the insurance adjuster, and in ruling on plaintiff's motion for a new trial, the court gave as one of the reasons for sustaining the motion, that the court was in error in its said ruling on the testimony in question. The objection to this testimony when offered was that if any offer of settlement was made, it was made in an attempt to compromise and therefore was not admissible as an admission against interest. A review of the testimony discloses that at the time the alleged offer was made, there was no disputed claim in existence. The testimony tends to show that the defendant company and other companies interested, through their adjuster, had informed themselves of the *Page 570 amount of the loss under the policies. No proofs of loss had been made, no suit had been instituted, and no disagreement between the parties had arisen at that time. In fact, the testimony shows there was no dispute until the offer had been made and was rejected by plaintiff.
A similar question was discussed and decided against the contention of defendant in the case of Paris v. Waddell,139 Mo. App. 288, 123 S.W. 79, where it is said: "It is claimed the court committed error in permitting the respondent to testify that when he went to see the appellant about the matter, he said he would pay five dollars for the use of the rig, but he would not pay any damages. Appellant's claim of error is made upon the theory that this was an offer of compromise. We do not so regard it. No suit was pending at the time and the respondent simply went to him to collect his bill for the use of the team and damages. The evidence fails to show any negotiations for a compromise were then under way." [See, also, Wood v. Duffy, 127 Mo. App. 543, 106 S.W. 82; Hilburn v. Insurance Co., 140 Mo. App. 355, 124 S.W. 63; Moore v. Gaus, etc., Co., 113 Mo. 98.] We therefore hold the evidence was competent and the trial court properly held that the refusal to admit it was error.
We find the ruling of the trial court in granting plaintiff a new trial was proper, for the reasons above stated. The judgment is affirmed.
Trimble, P.J., in separate opinion, concurs in the result only, and Bland, J., concurs with him in that view.