Baker & Lasley v. Phœnix Ins. Co. of Hartford
| Citation | 221 S.W. 761 |
| Decision Date | 10 May 1920 |
| Docket Number | No. 13373.,13373. |
| Court | Missouri Court of Appeals |
| Parties | BAKER & LASLEY v. PHŒENIX INS. CO. HARTFORD. |
Appeal from Circuit Court, Saline County; Samuel Davis, Judge.
"Not to be officially published."
Action by Baker & Lasley, a copartnership, against the Phoenix Insurance Company of Hartford. From judgment for plaintiff, defendant appeals. Reversed, and cause remanded for new trial.
Fyke, Snider & Hume, of Kansas City, and V. V. Huff, of Marshall, for appellant. Robert M. Reynolds and Albert R. James, both of Marshall, for respondent.
This is an action on a fire insurance policy wherein defendant insured plaintiffs' stock of merchandise to the amount of $1,325 from noon of April 14, 1917, to noon of April 14, 1918. The store was destroyed by fire about midnight of April 12, 1918. Under the instructions of the court, the jury returned a verdict for plaintiffs for the amount of the policy, with 6 per cent. interest from date of suit. Upon this verdict, judgment was rendered, and defendant appealed.
Plaintiffs' petition based their right of action upon full compliance with all the terms of the policy, but at the commencement of the trial the petition was amended by interlineation, alleging that the company denied all liability under said policy, and had done so from and after July 10, 1918.
The answer denied that the loss was as great as the amount alleged and sued for, and also charged that the plaintiffs did not keep account books, showing the business done nor the stock on hand, as required by the policy, and that they did not keep their account books securely locked in a fireproof safe at night, as they, in the policy, covenanted and warranted they would. The reply was a general denial.
The plaintiffs, having pleaded performance of the terms and conditions of the policy, introduced oral testimony to the effect that the stock of goods, at the time of the fire,. was worth over $6,000; that they kept proper books of their business, and that these account books were kept in a fireproof safe in the store; that on the night the fire occurred they locked the books in the safe, and left the store about or shortly after 9 o'clock; that about 11:30 or midnight that night fire broke out in the store and destroyed the building and its contents; that before the fire had entirely consumed the building they found the safe with the door thereof (tile door having a combination lock) standing about a quarter open; that it had been closed and locked the night before; that all their account books, invoices, and papers, together with an inventory of the stock taken about two weeks before the fire, were in the safe; and that everything therein was burnt up except a few pennies. There is an intimation that the store was burglariously entered at some time in the night prior to the fire, and that this was how the safe came to be open, but the only thing in reference thereto is contained in an answer of one of the plaintiffs to a question as to whether the store was open after he left it that night. He replied, "No, sir; only the fellows that got in there."
Plaintiffs offered further oral testimony that when the adjuster asked if they had the books they told him they were all burned up, and sent him by the ruins to see the safe; that at the adjuster's suggestion they went to Marshall, where with the help of a stenographer, the adjuster, and one of plaintiffs, a statement of the loss was made out, after plaintiff had obtained data therefor from wholesale houses in the shape of invoices of goods purchased that year, and from the record of plaintiffs' account at the bank; that the statement and proof of loss was signed and sent in to the company; that after this was done the adjuster wrote plaintiffs a letter. This was introduced in evidence. It was dated July 10, 1918, and, after referring to the policy, said, among other things:
"This is to advise you that the Phœnix Insurance Company of Hartford, Connecticut, * * * deny any and all liability for loss to merchandise...
To continue reading
Request your trial
-
McKeon v. National Casualty Co.
... ... en banc) 793; O'Connor v. Columbian Nat. Life ... Ins. Co., 208 Mo.App. 47; Goodes v. Order of U. C ... T., ... Davis v. Modern Woodmen, 98 Mo.App. 713; ... Baker v. Supreme Lodge, 103 Miss. 374; Ward v ... days. Baker & Lasley v. Phoenix Ins. Co., 221 S.W ... 761; Hosmer Bros. v ... ...
-
State ex rel. Metropolitan Life Ins. Co. v. Allen
...of the Courts of Appeal. Phillips v. Protection Ins. Co., 14 Mo. 167; State ex rel. Ins. Co. v. Becker, 77 S.W.2d 100; Baker & Laskey v. Phoenix Ins. Co., 221 S.W. 761; McKeon v. Natl. Casualty Co., 270 S.W. Landis v. Home Mut. F. & Marine Ins. Co., 56 Mo. 591; Martin v. Continental Ins. Co......
-
Young v. Metropolitan Life Ins. Co.
... ... Hardy-Burlingham Mining Co. v. Baker, 10 F.2d 277; ... Curry v. Federal Life Insurance Co., 221 Mo.App ... ...
-
State ex rel. Met. Life Ins. Co. v. Allen
...the Courts of Appeal. Phillips v. Protection Ins. Co., 14 Mo. 167; State ex rel. Ins. Co. v. Becker, 77 S.W. (2d) 100; Baker & Laskey v. Phoenix Ins. Co., 221 S.W. 761; McKeon v. Natl. Casualty Co., 270 S.W. 707; Landis v. Home Mut. F. & Marine Ins. Co., 56 Mo. 591; Martin v. Continental In......