S. E. Hanna & Co. v. Orient Ins. Co.

• Citation: 82 S.W. 1115,109 Mo. App. 152
• Court: Court of Appeal of Missouri (US)
• Decision Date: 07 November 1904
• Parties: S. E. HANNA & CO. v. ORIENT INS. CO.

82 S.W. 1115

109 Mo. App. 152

S. E. HANNA & CO. v. ORIENT INS. CO.

Kansas City Court of Appeals. Missouri.

November 7, 1904.

FIRE INSURANCE — IRON-SAFE CLAUSE — WAIVER — PAROL EVIDENCE OF INVENTORY — VALUE OF PROPERTY.

1. A finding that a clause in a fire policy has been waived by the insurer eliminates that clause from the policy.

2. Error, if any, in allowing a hypothetical question to an expert as to whether an ironsafe clause in a fire policy was material to the risk, was harmless, where the jury found that the clause was waived.

3. Where an inventory of insured goods was destroyed with the goods, parol evidence of its contents was admissible.

4. Under Rev. St. 1899, § 7979, providing that property shall not be insured for more than three-fourths of its value, and that the value shall not be questioned in any proceeding, a company issuing a policy on property already insured in another company cannot, in an action on the policy, deny that the value of the property bears at least the proportion of four to three to the total insurance.

Appeal from Circuit Court, Johnson County; Wm. L. Jarrott, Judge.

Action by S. E. Hanna & Co. against the Orient Insurance Company. There was a verdict for plaintiffs, and from an order granting a motion for a new trial they appeal. Reversed.

J. W. Suddath, for appellants, cited Bush v. Ins. Co., 85 Mo. App. 155; Trust Co. v. Ins. Co., 79 Mo. App. 362; Ross-Langford v. Ins. Co., 97 Mo. App. 87, 71 S. W. 720; Ormsby v. Ins. Co., 98 Mo. App. 371, 72 S. W. 139; Rickey v. Ins. Co., 79 Mo. App. 485; James v. Ins. Co., 148 Mo. 1, 49 S. W. 978.

Fyke Bros. and Snider & Richardson, for respondent.

SMITH, P. J.

This is an action which was brought on a fire insurance policy insuring a stock of merchandise in the sum of $800. The answer admitted the issue of the policy, the payment of the premium, the fire, and the loss. It denied all liability, and specially pleaded a condition of the policy commonly known as the "iron-safe clause," to the effect that "the assured under the policy hereby covenants and warrants to keep a set of books, showing a complete record of business transacted including all purchases and sales, both for credit and cash, together with the last inventory of stock insured; and further covenants and warrants to keep such books and inventory securely locked in a fireproof safe at night and at all times when the store mentioned in the within policy is not actually open for business, or in some secure place not exposed to a fire which would destroy the house where such business is carried on; and in case of loss, the assured warrants and covenants to produce to this company or its agent or attorney, such books and inventory, and in event of failure to produce the same, this policy shall be deemed null and void, and no suit or action shall be maintained thereon for any such loss." The answer further alleged that the plaintiffs wholly failed to comply with the requirements of said clause so pleaded, and that in consequence thereof they were not entitled to recover. It was also therein further alleged that the said condition was material. The replication denied that the said condition was material to the risk insured against. It alleged that plaintiffs did keep a set of books showing a complete record of business transacted, including all purchases and sales for cash or credit, together with the last inventory of the stock insured, and that they kept said books in another building, where one of the plaintiffs resided, except when the store was actually open for business. It is further alleged that defendant's agent who issued the policy sued on had full knowledge of the kind and character of plaintiffs' books, and where such books as well as the inventory of the store were kept, and where the same were expected to be kept; that defendant's said agent knew that plaintiffs did not have an iron safe; that plaintiffs told him where they kept and expected to keep their said books and inventory, and that he assented to their being so kept; and with this understanding the plaintiffs paid the premium to him and accepted the policy, by which acts the defendant, through its agent, waived all the rights to claim any benefit of said condition pleaded by the answer, etc. There was a trial to a jury, resulting in a verdict for plaintiffs. Afterwards the court, on motion of defendant, made an order setting aside the verdict on the ground, as appears from the record, that it had erred in the admission of testimony offered by the plaintiffs and in giving instructions requested by them. The plaintiffs appealed from this order.

The instructions given for both plaintiffs and defendant submitted to the consideration of the jury the issue of waiver of the conditions of the iron-safe and book clause of the policy. There was an all-around concession that there was sufficient evidence to carry the case to the jury on that issue. An examination of the record has convinced us that the evidence there preserved was ample to justify a submission of the issue. The effect of the finding of the jury on this issue in favor of the plaintiffs was to strike that condition from the policy. The policy, as found by the jury, is not different from that containing no such condition. The numerous adjudications cited in plaintiffs' brief fully sustain this conclusion.

No instruction save that to be presently noticed was requested by either party, submitting to the jury any issue other than that of waiver of the iron-safe condition. It is true that plaintiffs introduced several witnesses who were experienced in the business of fire insurance. The plaintiffs, in the examination of these witnesses, read to them severally the iron-safe and book condition of the policy, and were then permitted to inquire of them whether or not, with that condition in the policy, if when the policy was issued there was $1,300 insurance on the stock of goods, and the law fixed the value of such stock by reason of said...