This is an action to recover on a fire insurance policy. Plaintiff recovered judgment for $1500 and interest, with $200 for attorney's fees, and nothing for vextious delay. The policy covered machinery, equipment, appliances, dynamos, furniture and fixtures, and all office equipment, and all improvements made to the building, and "stock in trade, consisting principally of paints, dry or in oil, paint pigments, oils, *Page 605 minerals, colors, manufactured, unmanufactured and in the process of manufacture, and all materials and supplies used in and for the manufacture, storage, shipping, packing and sale thereof; on barrels, drums, cans, boxes, stationery and advertising matter, and all other merchandise and materials constituting their stock in trade and incident or necessary to the business as conductedby them. (Italics ours.)
This policy also contained the following "Work and Materials Clause:"
"Permission granted for the use of the premises as stated above and for other purposes not any more hazardous, and when not in violation of any law, statute or municipal restriction, to keep and use all articles and materials usual to the business conducted therein, but the use, handling or storing of benzine, benzole, calcium carbide, dynamite ether, fireworks, gasoline, Greek fire, gunpowder exceeding twenty-five (25) pounds in quantity, naptha, nitro-glycerin or other explosives, phosphorus, petroleum or any of its products of greater inflammability than kerosene oil of the legal standard is prohibited unless a specific permit is attached hereto."
It is also provided that the policy should be void, unless otherwise provided by agreement endorsed thereon or added thereto, ". . . if (any usage or custom of trade or manufacture to the contrary notwithstanding), there be kept, used, or allowed on the above described premises, . . . naptha . . . or other explosives, phosphorus, or petroleum or any of its products of greater inflammability than kerosene oil . . ."
The policy in question was secured and written by an insurance broker named Berry. Plaintiff contends that Berry was acting as agent of the insurance company, and defendant contends that he was acting as agent of the plaintiff. We shall not set out in detail the testimony with respect to Berry's connection with this transaction, for in our view of the case, as will hereafter appear, it is immaterial as to whom Berry represented.
Defendant contends that the keeping of naptha on *Page 606 the premises being conceded, and it being further conceded that such was more inflammable than kerosense, the policy was thereby rendered void.
Complaint is also made as to the giving of certain instructions, and the submission to the jury of the question of vexatious refusal to pay.
The evidence shows conclusively that naptha was kept on the premises in question, and used in the manufacture of the paint manufactured and used by the plaintiff company. The testimony also discloses that all naptha, whether designated as deodorous naptha, heavy naptha, terrebentine, or texine, is more inflammable than kerosene. There was substantial testimony tending to show that naptha, in some form, was used in eighty per cent. of the paint manufacturing establishments of St. Louis, and was universally used by all concerns manufacturing the character of paint manufactured by the plaintiff company. It is the general rule of construction in policies of this kind that the insurer is chargeable with knowledge of the presence of such articles as are customarily and necessarily used in the business insured; this on the theory that the description of the insured property amounts to a consent to keeping the customary articles used therein. [Archer v. Insurance Co., 43 Mo. 434; Niagara F. Ins. Co. v. DeGraff, 12 Mich. 124: Yoch v. Home Mutual Ins. Co. 111 Cal. 503; Pindar v. Kings County F. Ins. Co., 36 N.Y. 648; McClure v. Mutual F. Ins. Co., 242 Pa. 59; Traders' Ins. Co. v. Dobbins,114 Tenn. 227; Harper v. N.Y. City Ins. Co., 22 N.Y. 441: Mascott v. First Nat. F. Ins. Co., 69 Vt. 116.]
It will be noted that the policy in this case covers its portion of the contents of a paint manufacturing establishment, and the insurance covers all materials constituting their stock in trade, and "incident or necessary to the business as conducted by them." There being substantial testimony to show hat naptha was absolutely essential in the conduct of plaintiff's business, and all naptha being more inflammable than kerosene, this portion of the policy must be held to govern. If plaintiff *Page 607 used any naptha, it was more inflammable than kerosene. The face of the policy itself showing the kind and character of business insured, would charge defendant with knowledge that plaintiff was using naptha, and, as heretofore stated, all naptha being of a greater inflammability than kerosene oil of the legal standard, it would make no difference what particular kind of naptha plaintiff was using. The question as to whether or not the broker represented the insurance company so as to charge it with knowledge that plaintiff was using naptha, becomes important only in such cases as Kenefick v. Norwich Union Fire Insurance Society, 205 Mo. 294, 103 S.W. 957, where the assured is keeping on the premises such articles as are not usually kept and used on the premises and in the business described in the policy of insurance. [See King County F. Ins. Co. v. Swigert,11 Ill. App. 590.] In such cases it would be material who the broker represented, as tending to show whether there was any waiver of the provisions in the policy with respect to the keeping of prohibited articles.
Defendant contends that plaintiff's instructions are in conflict with defendant's instructions, and therefore the judgment should be reversed. Instruction No. 1 given for the plaintiff, after setting out such facts as were necessary to entitle plaintiff to recover, concludes as follows:
". . . and if you further believe that on said date W.R. Berry was the agent of the defendant, as explained and defined in other instructions, and that he had been informed and knew before and at the time he issued the policy that plaintiff was using such grade of naptha or petroleum products in manufacturing paint, then you are instructed that the use of naptha, or such petroleum products did not avoid the policy and your verdict should be for plaintiff."
It is contended that this portion of plaintiff's instruction conflicts with one of defendant's instructions. But if such were true, it would not be reversible error in this case, because, plaintiff, in requesting the above *Page 608 quoted portion of its instruction No. 1, and by offering proof seeking to establish the fact that Berry represented the insurance company, assumed a greater burden than it was required to assume, and if there was error on accourt of any conflict, then it was error in favor of defendant, and for which defendant cannot complain.
Plaintiff's main instruction, without the portion set out above, presented all the issues necessary to entitle it to recover. This is not deciding the case upon a different theory than that on which it was tried in the court below, but upon the same theory with this element omitted.
As to the question of vexatious refusal to pay, and the alleged error of the trial court in submitting the question of damages and attorney's fees for such, we think there is sufficient evidence in this record to make this a question for the jury.
J.F. Fry, who was vice-president of plaintiff company, testified that when he took up the matter of adjustment with Mr. Fargo, the adjuster for the defendant, and made demand on him for payment, he (Fargo) stated that he was not ready to settle; that he had not been near the plant and did not intend to go near it; and that "there was nothing doing." The adjuster refused to take up the question of the cause of the fire, or to ascertain the loss and damage, unless plaintiff would sign a non-waiver agreement. We think, when all these facts and circumstances are taken into consideration, that it made a question for the consideration of the jury as to whether or not defendant was liable for attorney's fees. The jury did not allow plaintiff anything for vexatious delay, but did allow $200 attorney's fees. We are not quite able to comprehend how the jury would allow one without the other; yet defendant cannot complain if there was evidence tending to substantiate such finding as to either. [Non-Royalty Shoe Co. v. Insurance Co., 277 Mo. 399,210 S.W. 37.]
The commissioner recommends that the judgment be affirmed. *Page 609