Carp v. Queen Ins. Company
| Decision Date | 13 February 1906 |
| Parties | CARP, Respondent, v. QUEEN INSURANCE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Stone Circuit Court.--Hon. Asbury Burkhead, Judge.
AFFIRMED.
Judgment affirmed.
Edw. J White and Barger & Hicks for appellant.
The failure of plaintiff to keep and perform the conditions of the iron-safe clause is a bar to any recovery in this action. Gibson v. Ins. Co., 82 Mo.App. 515; Gillum & Co. v. Fire Association of Philadelphia, 106 Mo.App. 625, 80 S.W. 283; Crigler v. Ins. Co., 49 Mo.App. 11; Keet-Rountree Dry Goods Co. v. Ins. Co., 100 Mo.App 504, 74 S.W. 469; Ins. Co. v. Dudley, 45 S.W. 539 28 Ins. Law Jour. 44; St. Landry Wholesale Mercantile Co., Limited v. Ins. Co., 34 Ins. Law Jour. 699; Rives v. Fire Association of Philadelphia, 77 S.W. 424.
McNatt & McNatt and H. H. Bloss for respondent.
(1) The appellant begins its brief by citing many cases supporting the contention that a failure to comply with the iron-safe clause of the policy is a defense. The cases cited are of no value in Missouri on account of the recent statutes which obtain here and the recent adjudications construing the same. In a few instances our courts have overlooked these statutes and construed such provision as warranties. Siegle v. Ins. Co., 107 Mo.App. 456, 81 S.W. 637. All warranties of any facts or conditions in fire policies issued since 1897, which shall not materially affect the risk insured against shall be deemed as representations only. R. S. 1899, sec. 7973 and 7974. And it is held to be a question of fact under the above statutes for the jury, whether the iron-safe clause of a policy, is a material one to the risk; and its finding that it is not, has the legal effect of striking such provision entirely from the policy. Hanna v. Ins. Company, 109 Mo.App. 152, 82 S.W. 1115; Dolen v. Ins. Co., 88 Mo.App. 666; White v. Ins. Co., 93 Mo.App. 282. Hence under these statutes and the decisions, it must be pleaded and proved by the defendant insurance company, affirmatively, that the iron-safe clause in this instance was a material one to the risk assumed, for as repeatedly held, statutes of this kind are read into the policy as much so, as though provided for by its terms in language therein contained. Richey v. Ins. Co., 104 Mo.App. 146, 78 S.W. 341; Christian v. Ins. Co., 143 Mo. 460, 45 S.W. 268; Havens v. Ins. Co., 123 Mo. 403, 27 S.W. 718; Summers v. Ins. Co., 90 Mo.App. 691. (2) In giving effect to a similar provision of a policy of insurance where not only the bills of purchase were inadvertently left out of the safe but also the invoice, but they were supplied by duplicates as in this case the bills of purchase were, the court said, that the assured had substantially complied with this provision of the policy. McNutt v. Ins. Co., 45 S.W. 61; 13 Amr. and Eng. Ency. of Law, (2 Ed.), p. 356. (3) This court has placed the construction upon the policy and held that it is not necessary to keep books from the date of the policy, but only from the date of an inventory, which was taken in thirty days after the policy in a case where no inventory had previously been taken. Bayless v. Co., 106 Mo.App. 684, 80 S.W. 289; Forehand v. Ins. Co., 58 Ill.App. 161. (4) The inventory taken in January, 1902, although not quite completed at the time of the fire, together with an itemized list kept in a book of every article sold from the stock, taken with the fact that no goods were purchased after the inventory, certainly enabled the defendant to ascertain the amount of the loss, and in any event was substantial compliance even though the court should hold that an inventory was to be taken within one year after the first inventory. Meyer Bros. v. Ins. Co., 73 Mo.App. 166; Malin v. Ins. Co., 105 Mo.App. 625, 80 S.W. 56; St. Landry Mercantile Co. v. Ins. Co., 37 So. 967; Ins. Co., v. Fitye, 78 S.W. 370; Ins. Co. v. Cumming, 78 S.W. 716; Ins. Co. v. Cummings, 78 S.W. 378.
This is an action on an insurance policy written by the defendant on the plaintiff's stock of merchandise. The goods were kept in a two-story brick building at 117 East Olive street in Aurora, Missouri. A fire which occurred January 29, 1902, destroyed the stock. The petition alleged full compliance by the plaintiff with the terms of the contract and that the defendant had vexatiously refused to pay the amount of the loss. In defense, the answer set up six separate defenses. There was first a general denial of all the statements contained in the petition except those admitted in the answer to be true; and, second, a denial that the plaintiff had complied with the terms and conditions of the policy or had sustained loss or damage on the property insured to the amount of $ 12,000 as alleged in the petition, or that defendant had vexatiously and unlawfully refused to pay the loss or was indebted to the plaintiff in any sum whatever. In the third paragraph of the answer, defendant pleaded a clause or stipulation of the policy providing that if the insured and the company differed about the amount of the loss, the amount should be ascertained by three appraisers, one appointed by the company, one by the insured, and a third by those two; that the amount of loss or damage was not agreed to between plaintiff and the company but a difference arose between them regarding it; that thereupon the defendant demanded an appraisement, and a written agreement submitting the amount of damage to the appraisers was signed by both parties; that afterwards, each of them selected an appraiser pursuant to the terms of the agreement, but the amount of loss had never been determined by the appraisers thus appointed, and, as by the terms of the policy, no action could be maintained on it until after the ascertainment of the loss by appraisers, the action was prematurely brought. The fourth paragraph of the answer contains the special defense of a breach of the clause of the policy providing that if the insured concealed or misrepresented any material fact concerning the insurance, or the subject thereof, or in case of any fraud or false swearing of the insured touching any matter relating to the subject of the insurance, whether before or after the loss, the policy should be void. In this paragraph, it is alleged that the plaintiff, on May 17, 1902, after the fire, made out and delivered to the defendant verified proofs of loss under said policy, in which he falsely stated the value of the goods insured at the time of the fire to be $ 11,669.36, and the loss or damage to be the same sum; when, in truth, the plaintiff knew the value of said goods was not nearly so great as alleged and that the damage done by said fire did not exceed $ 1,000. This defense further stated that plaintiff's purpose in making the false oath and furnishing the false proofs of loss, was to deceive the defendant and induce it to pay him a sum largely in excess of what plaintiff knew his loss had been. As part of the same defense, it was further averred that plaintiff falsely stated, under oath, that the fire which consumed the property originated from an unknown cause, and that this averment was untrue and made with the intention of defrauding the defendant. Another part of the defense was that plaintiff had falsely stated, under oath, that at the time of the fire he was the owner of the property consumed, which statement was untrue and made with the intent to cheat and defraud the defendant. It was averred that by reason of said facts, plaintiff had forfeited whatever claim he might otherwise have had under the policy, which had become null and void and the defendant was not liable in this action. The fifth defense was that plaintiff, with the intention of fraudulently obtaining from defendant the amount of the policy, set or caused to be set, the fire which burned the insured property; that said fire was caused by the act or connivance of the plaintiff for the purpose of defrauding defendant; wherefore, the policy became and was void. The foregoing five separate and distinct defenses were pleaded in the original answer and were the issues before the jury on the first trial of the cause; that trial resulted in a verdict for the plaintiff and an appeal was taken to this court; which reversed the judgment because the lower court had erred in instructing the jury regarding the waiver of the defendant company of compliance by the plaintiff with the clause of the policy requiring an arbitration of the loss before suit could be brought. The cause was remanded for retrial to the circuit court of Lawrence county whence the first appeal was taken. Afterwards, a change of venue was awarded to the circuit court of Stone county. In the latter court the defendant filed an amended answer in which it renewed all the previous defenses, and in addition pleaded a sixth one based on the failure of the plaintiff to comply with what is known as the "Iron-Safe Clause" of the policy, which reads as follows:
"Iron-Safe Clause.--The assured under this policy hereby covenants and agrees to take an inventory of the stock hereby covered at least once every twelve months during the life 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 days thereafter; and to keep a set of books, showing a complete record of business transacted including all purchases and sales both for cash and credit, together with the last inventory of said business; and further covenants and agrees to keep such books and inventory securely locked in a fireproof safe at night, and at times when the store mentioned in the within policy is not actually open for...
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