Parsons v. Knoxville Fire Ins. Co.

Decision Date28 May 1895
PartiesPARSONS et al. v. KNOXVILLE FIRE INS. CO.
CourtMissouri Supreme Court

1. In an action on an insurance policy, which provided that, if the insured did not own the land on which the insured building was situated, the policy should be void, unless such fact appeared in writing thereon, it appeared that plaintiff did not, in his application, claim to own the land, and that defendant's agent knew at the time the policy was issued that plaintiff did not own it. Held, that defendant was estopped to claim a forfeiture for breach of such stipulation, though the policy provided that a waiver of any conditions thereof by the agent should be indorsed thereon.

2. An agent of an insurance company, who has authority to issue and countersign policies, may strike out parts of a provision in regard to the keeping of a set of books "locked in a fireproof safe" at night, on objection thereto by the proposed insurer.

Appeal from circuit court, Mercer county; Paris C. Step, Judge.

Action by W. E. Parsons & Son against the Knoxville Fire Insurance Company. From a verdict for plaintiffs, defendant appeals. Affirmed.

The instructions referred to in the opinion are as follows:

Defendant requested the court to give, among others, the following instructions: "(2) The court instructs the jury that plaintiffs cannot recover any insurance for the destruction of their store building. (3) If the plaintiffs are not the owners of the land on which the building insured by the policy of insurance in suit stood, by title in fee simple, and this fact was not so expressed in the written portions of said policy of insurance, then you are instructed that said policy of insurance is void as to said building, and you cannot allow plaintiffs any insurance on said building. (4) The court instructs the jury that the policy of insurance in suit is void as to the stock of merchandise of plaintiffs, and that plaintiffs are not entitled to recover any insurance therefor." "(6) If the jury believe from the evidence that plaintiffs did not keep a set of books showing a complete record of business transacted by them, including all purchases and sales for cash or credit, together with the last inventory of their business, and that they were, at the time of the fire in question, and are now, unable to produce such books and inventory, then you are instructed that the policy of insurance in suit is null and void, and plaintiffs cannot recover the amount of insurance on their stock of merchandise." "(9) If the jury believe that plaintiffs did not keep any books showing their sales of goods and merchandise for cash, you are instructed that plaintiffs cannot recover any insurance on their goods and merchandise." "(12) The jury are instructed that the written application of plaintiffs for insurance, read in evidence, became, by its terms, and the condition of said policy, a part of the contract of insurance sued upon in this cause, and that by the terms of said application plaintiffs agreed to keep books showing purchases and sales for cash or credit, and last account of stock, and if the jury find from the evidence that plaintiffs failed to keep said books, or any of them, then plaintiffs cannot recover anything for the goods or merchandise burned in said fire, and the jury, as to such goods and merchandise, must find for the defendant." All of which instructions the court refused to give, and to the action of the court in so refusing the defendant at the time duly excepted.

Among those given at the request of plaintiffs, and of which defendant now complains, are the following: "(5) It is claimed by the defendant that by the terms of the policy the plaintiffs were to keep a set of books, showing a complete record of their business transactions, including all purchases and sales, both for cash or credit, together with the last inventory of said business; and further covenanted and agreed to keep such books and inventory securely at night, and at all times when the store mentioned in said policy was not actually opened for business, or in some secure place not exposed to a fire which would destroy the house where such business was carried on; and in case of loss the plaintiffs agreed to produce such books and inventory, and, in the event of a failure to produce the same, the policy should be void; and the defendant claims it is not liable on said policy, for the alleged reason that plaintiffs failed to comply with said agreement, in that plaintiffs did not keep a set of books showing a complete record of the business transactions, including all purchases and sales, both for cash or credit, together with the last inventory; and for the further reason, as alleged by the defendant, that the plaintiffs refused to produce said set of books and last inventory. And on this issue the court instructs you that the purpose of keeping such books and inventory, so far as the defendant is concerned, was to enable defendant, by such books and inventory, to test the accuracy of the proofs of loss rendered by plaintiff, and to determine the amount of goods covered by said policy in plaintiffs' store, and burned. And if plaintiffs so kept their books and papers and inventory relating to their business that therefrom the amount of such goods on hand in their store at the time of the fire, and destroyed, could be fairly determined, then they have complied with the conditions of said policy relating to the keeping of their books and inventory. On this issue the jury are further instructed that under the terms of the policy and the application read in evidence, which are to be taken together, the defendant waived its right to insist that the said books and papers should be preserved by keeping them at all times as stated in said policy, and it was sufficient to so keep them a part of the time, and, if plaintiffs did so keep them a part of the time, and any of the books and papers of plaintiffs were destroyed by fire without the fault of plaintiffs, then they were excused from the production to defendant of such as were destroyed. (6) The jury are instructed that, although they may find that the plaintiffs did not keep a set of books and inventory in the manner or as required by the terms of said slip or sticker pasted on said policy, and did not preserve them as therein required, yet if the jury further find from the evidence that one Griffith was the adjuster of defendant, authorized by it to investigate, adjust, and settle said loss, and said adjuster, while investigating and attempting to adjust and settle said loss (if he did investigate or attempt to adjust or settle the same), ascertained and learned all the facts relating to the alleged failure of plaintiffs to keep a set of books and inventory, and to preserve the same, as required by the terms of said slip or sticker pasted in said policy, and, after learning and knowing such facts, required and requested plaintiffs to furnish proofs of loss, or to correct proofs when furnished, and in compliance with such requirements and request of said adjuster, plaintiffs incurred expense in making or in correcting such proof, and in making the same comply with the requirements of said adjuster, and if the jury further find from the evidence the said adjuster so demeaned himself towards plaintiffs as would lead a man of ordinary prudence to believe that he and said company still regarded said defendant bound by and liable on said policy, then the defendant waived its right to set up or claim that the said policy was forfeited or void by reason of such failure to so keep said books and inventory, and preserve the same, as required by said policy." "(8) The defendant claims that it is not liable on said policy, for the reason that the land on which the said building stood was not owned by plaintiffs in fee simple. On this issue the court instructs you that it is admitted that the land on which said building stood was not owned by plaintiffs. On this issue the court further instructs you that, if the plaintiffs owned said building, and had the right to remove the same from said land, and you further find from the evidence that at the time of making the application for said insurance they told the agent who took said application (if he was the agent of defendant) that they did not own said land, then the knowledge of such agent acquired in said transaction as to the ownership of said land is the knowledge of the company; and if the defendant still, notwithstanding such knowledge, issued said policy, and the plaintiffs in good faith paid for and accepted said policy not knowing of said condition therein, and did not (or by the exercise of ordinary care might not have known) know of such condition until after said loss, then the defendant is estopped from claiming said policy void by reason of their nonownership of said land. And in such case you cannot find for the defendant on this issue."

Among those given by the court of its own motion over defendant's objection, are the following: "(6) If the jury believe from the evidence that plaintiffs did not keep a set of books showing a complete record of business transacted by them, including all purchases and sales for cash or credit, together with the last inventory of their business, and that they were, at the time of the fire in question, and are now, able to produce such books and inventory, then you are instructed that the policy of insurance in suit is null and void, and plaintiffs cannot recover the amount of insurance on their stock of merchandise, unless they further believe that the defendant waived the forfeiture of said policy after the fire, by requesting and accepting proofs of loss from plaintiffs." "(12) The jury are instructed that the written application of plaintiffs for insurance, read in evidence, became, by its terms and the conditions of said policy, a part...

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