82 S.W. 1115 (Mo.App. 1904), S. E. Hanna & Company v. Orient Insurance Company

Citation:82 S.W. 1115, 109 Mo.App. 152
Opinion Judge:SMITH, P. J.
Party Name:S. E. HANNA & COMPANY, Appellant, v. THE ORIENT INSURANCE COMPANY, Respondent
Attorney:J. W. Suddath for appellants. Fyke Bros., Snider & Richardson for respondent.
Case Date:November 07, 1904
Court:Court of Appeals of Missouri
 
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Page 1115

82 S.W. 1115 (Mo.App. 1904)

109 Mo.App. 152

S. E. HANNA & COMPANY, Appellant,

v.

THE ORIENT INSURANCE COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

November 7, 1904

Appeal from Johnson Circuit Court.--Hon. Wm. L. Jarrott, Judge.

Judgment reversed. (with directions).

J. W. Suddath for appellants.

(1) The agent who solicited this insurance countersigned and delivered the policy and collected the premium, had authority to make a waiver and under the facts in this case waived the "iron-safe clause" and keeping of books. 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; Ormsby v. Ins. Co., 98 Mo.App. 371; Rickey v. Ins. Co., 79 Mo.App. 485; James v. Ins. Co., 148 Mo. 1. (2) Under section 7979, Revised Statutes 1889, this was and is a valued policy, and the value of the stock was fixed by the taking of the policy. Gibson v. Ins. Co., 82 Mo.App. 515. (3) All warranties of any facts or condition in policies in any policy issued since 1897, which shall not materially affect the risk insured against shall be deemed as representations only. R. S. 1899, sec. 7974. (4) What is material to the risk insured against is always a question for the jury. Kern v. Ins. Co., 40 Mo. 20; Boggs & Leath v. Ins. Co., 30 Mo. 67; Schroeder v. Ins. Co., 46 Mo. 178; Schultz v. Ins. Co. , 57 Mo. 331, l. c. 337; Atherton v. Ins. Co., 39 A. 1006; Levie v. Ins. Co., 39 N.E. 792; Dolan v. Ins. Co., 88 Mo.App. 666; White v. Ins. Co., 93 Mo.App. 282. (5) A person with long experience in the insurance business is competent to give his opinion as to materiality to the risk, of the facts or condition complained of. Kern v. Ins. Co., 40 Mo. 20.

Fyke Bros., Snider & Richardson for respondent.

(1) The action of the court in granting a new trial was proper. The court erred in admitting evidence of so-called experts upon the question whether or not the iron-safe and book clause was material. If there was any question of fact as to the materiality of the condition, such question was for the jury, and not for the witnesses. (2) It was not proper subject-matter of expert testimony. Kirby v. Ins. Co., 9 Lea (Tenn.) 142; Ins. Co. v. Dwyer, 1 Posey (Tex.) 441; Thorpe v. Ins. Co., 70 Mo. 531; Ins. Co. v. Catheral, 7 Wenk 72; Joyce v. Ins. Co., 4 Maine 168; Dry Goods Co. v. Ins. Co., 74 S.W. 468; Desoto v. Ins. Co., 74 S.W. 1. For distinction between warranty and representation, see McDermott v. Ins. Co., 97 Mo.App. 647. (2) The court erred in giving plaintiffs' instruction 2 for the foregoing reasons, and because it ignores the three-quarter clause in the policy. Willis v. Company, 95 Mo.App. 211; Roberts v. Ins. Co., 94 Mo.App. 150.

OPINION

[109 Mo.App. 154] 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 especially 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...

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