Cantor v. Insurance Company of North America
| Decision Date | 14 June 1926 |
| Docket Number | 15495 |
| Citation | 285 S.W. 803 |
| Parties | Harry Cantor, Respondent, v. Insurance Company of North America, Appellant |
| Court | Missouri Court of Appeals |
Rehearing Denied July 6, 1926.
Appeal from Cole Circuit Court.
Affirmed.
Shain & O'Bannon, of Sedalia, and Dumm & Cook, of Jefferson City, for appellant.
W. C Irwin and D. W. Peters, both of Jefferson City, for respondent.
This is an action to recover on two policies of insurance.
The petition is in two counts, the first of which covers a policy of fire insurance issued by defendant to plaintiff on July 3 1923, for one year covering a stock of merchandise consisting of groceries, provisions, canned goods, coffee, tea, spices, cigars and tobacco, meats, country produce, baker and confectionery goods, etc., owned by plaintiff and kept for sale in a store room at 127 West Franklin Street in the City of Clinton, Henry County, Mo., for the sum of $ 2,000.
The second count covers a policy issued by defendant to plaintiff on Nov. 6, 1923, for one year, for the sum of $ 2,500, covering men's furnishing goods, consisting of men's shirts, pants, hats, caps, underwear and shoes; and the sum of $ 500 on the furniture and fixtures while contained in the same building at 127 West Franklin Street, Clinton, Mo.
The record discloses that plaintiff was a merchant doing business at 127 West Franklin Street in the City of Clinton, Mo., and defendant is an insurance company organized and existing under the law and authorized to do business in the State of Missouri; that on Nov. 6, 1923, an invoice was taken of all the goods covered by the policies in suit and placed in the safe of the agents of defendant company in the City of Clinton, Mo., for safe keeping. There is no dispute as to the issuance of the policies and the premiums paid therefor, as alleged in the petition.
On Dec. 16, 1923, a fire occurred in the building containing the goods insured by the policies. Said policies are the general standard fire policies and insure "against all direct loss or damage by fire except as hereinafter provided." The policies provide that the company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and provides the standard method of ascertaining the loss, appointment of appraisers, etc. Each policy also contains an inventory and iron safe clause, and inasmuch as the alleged violation of this clause constitutes one of the contested issues in this case, it is deemed advisable to set it out in full, as follows:
"It is made a condition of this insurance (1) That the assured under this policy shall take an inventory of the stock and other personal property hereby insured at least once every twelve months during the term of this policy, and unless such inventory has been taken within one year prior to the date of this policy, one shall be taken in detail within thirty (30) days thereafter; (2) That the assured shall keep a set of books showing a complete record of business transacted, including all purchases and sales both for cash and credit; (3) That the assured shall 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 building where such business is carried on; (4) That in case of loss the assured shall produce such books and last inventory."
The petition is formal in each count; alleges the corporate status of defendant, the date of the issuance of each policy, the amount of each, the location of the property where the insured goods were kept, the amount of the premiums and payment thereof on each; states that an inventory of the property was taken within twelve months of the issuance of the policies and that said inventory was kept safely deposited in an iron safe; that the property under each policy was completely destroyed by fire on Dec. 16, 1923; that proof of loss in due for was made and demand made for payment. Judgment is prayed for the full amount of each policy.
The answer to each count admits the allegations of incorporation and the issuance of the policies as pleaded, and generally denies all other allegations. Further answering, it is stated there was no loss or damage by fire on Dec. 16, 1923, or at any other time, of the property covered by the policies, such as would attach any liability to defendant under the law. The answer avers that as part consideration for the contract of insurance, plaintiff was to take an inventory of the goods insured every twelve months during the time the policies were in existence; and that the assured was to keep a set of books showing a complete record of business transacted, including all purchases and sales; that he should keep such books and inventories securely locked in a fire-proof safe at night and at all times when the store was not actually open for business, or in some secure place not exposed to fire, and that in case of loss the assured should produce such books and last inventory.
Defendant avers that plaintiff has failed and refused to make and keep such inventory, and has failed and refused to keep such set of books, and has failed and refused to produce such books for defendant as required by the policy and that by reason thereof, the policy sued on is void and of no effect.
It is further alleged in the answer that it was stipulated and agreed that the policies shall be void in the event the assured concealed or misrepresented any facts or circumstances concerning the insurance or the subject thereof, or in case of fraud or false swearing by assured touching any matter relating to the insurance or the subject matter thereof before or after the loss; that plaintiff violated said terms of the policies in that he misrepresented the amount and value of the goods and merchandise he owned and carried at the several times the policies were issued and in that plaintiff, in his proofs of loss made after the fire, did intentionally, wilfully, falsely and fraudulently over value the goods lost and damaged by fire and the damage to good not lost by fire; that plaintiff agreed under the terms of the policies and as further consideration therefor, stipulated and agreed that in case of fire he would protect the property from further damage, separate the damaged from the undamaged property, make a complete inventory thereof and the value of each group; that plaintiff violated this clause of the agreement in that he wholly failed to comply therewith.
Upon the pleadings thus made the cause was tried to a jury. The verdict was for plaintiff in the sum of $ 2,000 on the first count and in the sum of $ 2,500 on the second. Motions for a new trial and in arrest were overruled and defendant has appealed.
It is urged the court committed error in refusing to sustain the demurrer offered by defendant at the close of all the evidence, and in support of this charge it is pointed out that plaintiff admitted his failure to keep account of purchases and sales, as agreed, and that his failure to make proper proofs of loss are such non-compliance with the terms of the policies as to defeat recovery thereunder.
It is the rule that where a prima facie case is made, even though the testimony in behalf of the contesting parties is contradictory, the facts must be determined by the jury. The policies were properly received in evidence, the fact that the fire occurred is admitted and that proof of loss was made and demand for payment under the terms of the policies. There was also testimony from which the jury might reasonably infer that plaintiff kept account of sales and presented invoices of good purchased. We think plaintiff thus made such a prima facie case as is required by the rule followed in the cases of Gill v. W.O.W., 209 Mo.App. 63, 236 S.W. 1073; Keller v Supply...
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