Bayless v. Merchants' Town Mutual Insurance Company
| Decision Date | 04 April 1904 |
| Citation | 80 S.W. 289,106 Mo.App. 684 |
| Parties | N. M. BAYLESS, Respondent, v. MERCHANTS' TOWN MUTUAL INSURANCE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Gentry Circuit Court.--Hon. Gallatin Craig, Judge.
Cause affirmed.
Fyke Bros. and Snider & Richardson for appellant.
(1) No inventory of the stock insured was taken within twelve months prior to the issuance of the policy sued on, and none taken within thirty days thereafter as provided by the terms of that contract. No books showing a record of the business transacted were kept. This was a clear violation of the letter and spirit of the agreement and rendered the policy void. Crigler v. Ins. Co., 49 Mo. 11; Gibson v Ins. Co., 82 Mo. 515; Fire Assn. v. Calham, 67 S.W. 153; Fire Assn. v. Masterson, 61 S.W. 962; Ins. Co. v. Dudley, 45 S.W. 539; Rines v. Fire Assn., 77 S.W. 424; Keet-Rountree D. G. Co. v. Ins Co., 74 S.W. 469. (2) While plaintiff's statement was that he had no interest in the property insured prior to the policy's assignment to him, he detailed in evidence the steps by which he acquired title and the facts of the transactions between himself and Wilson and himself and Leonard. So that it was for the jury to say under proper instruction, asked by defendant, whether he held an interest therein with Leonard. If so, Leonard was not the unconditional and sole owner as provided he must be in the insurance agreement and the policy was thereby rendered void. Reithmueller v. Ins. Co., 20 Mo.App. 246; Barnard v. Ins. Co., 68 Mo. 127. (3) The policy being void in the hands of Leonard, his assignee took the same subject to all its infirmities then existing and acquired no greater rights thereunder than Leonard possessed at the time of assignment. Hoover v. Ins. Co., 93 Mo.App. 111; Ins. Co. v. Russell, 69 P. 345; Coos County v. Ins. Co., 102 U.S. ___. (4) Even though plaintiff may have taken policy sued on, upon its assignment to him, cured of all forfeitures standing against it on the hands of his assignor (which we dispute), it is shown by his own evidence that books of account showing a record of his business from that time were not kept or attempted to be kept and could not have been produced, in which respect he has clearly violated the terms of the policy and rendered same void. (5) The so-called inventory of stock taken October 25 is in no sense an inventory as contemplated by the court and compliance with that condition of the policy by which the assured agreed to take a complete itemized inventory of the stock insured, etc. Ins. Co. v. M. & H., 74 S.W. 792; R. M. & Co. v. Ins. Co., 48 S.W. 559; Assn. v Colhum, 67 S.W. 153.
Ed E Aleshire for respondent.
(1) The assignee of a policy of insurance can not be bound by the forfeiture of the assignor. Such assignee takes the policy wholly independent of such forfeitures, if any, and enters into a new contract and is only required to comply with conditions as he finds them. Plaintiff had, by his contract of insurance, thirty days from the date of the policy in which to have made the inventory, and he became the assignee October 25, 1902, and the fire occurred October 30, 1902, and hence, as to him, there was no forfeiture. Ellis v. Ins. Co., 64 Ia. 507; Ins. Co. v. Mumm, 120 Ind. 30; Shearman v. Ins. Co., 46 N.Y. 526; Hooper v. Ins. Co., 17 N.Y. 17; Stien v. Ins. Co., 89 N.Y. 316; Ins. Co. v. Hall, 93 Mich. 184; Ellis v. Ins. Co., 32 F. 646; Ostrander on Fire Insurance (2 Ed.), sec. 210. (2) Appellant's instruction covering the question of Leonard being the sole and unconditional owner of the property when the policy was issued was properly refused for several reasons. (3) Appellant's authorities have no application. There the policies became void by reason of vacancy and no assignee or third party intervened. As to the insured the policy became void and the question decided was, could it be revived again by the insured?
The policy sued on was originally issued by defendant to W. G Leonard on the twenty-second day of August, 1902, insuring a stock of merchandise at Alanthus, Missouri. On the twenty-fifth day of October, 1902, the said Leonard assigned said policy to plaintiff, who had become the owner of the property, on which day the agent of the defendant approved of said assignment. On the thirtieth day of October, following, a fire occurred which destroyed the whole property insured. The policy recites that if an inventory of the goods should not be taken within twelve months prior to its date, then one should be taken within thirty days thereafter; and for failure to take inventory, as thus specified, the policy would become void from that time. And it was also stipulated that the assured would keep a set of books which would plainly present a complete record of all business he has transacted,...
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