Culver v. Williamsburg City Fire Insurance Company
| Citation | 124 S.W. 540,141 Mo.App. 205 |
| Parties | GEORGE CULVER, Respondent, v. WILLIAMSBURG CITY FIRE INSURANCE COMPANY, Appellant |
| Decision Date | 10 January 1910 |
| Court | Court of Appeals of Kansas |
Appeal from Linn Circuit Court.--Hon. John P. Butler, Judge.
Judgment affirmed.
Fyke & Snider for appellant.
(1) The judgment should be reversed as to the insurance on merchandise, because there was a total failure on the part of respondent to "keep books of account correctly detailing all purchases and sales of said stock." Gibson v Ins. Co., 82 Mo.App. 515; Keet-Roundtree Dry Goods Co. v. Ins. Co., 100 Mo.App. 504-514; Johnson et al v. Ins. Co., 120 Mo.App. 80-86; Hollenbeck v. Ins Co., 133 Mo.App. 57-60; Tenn. Mut. Ins. Co. v. Dudley, 65 Ark. 240-45, S.W. 539; Pelican Ins. Co. v. Wilkerson, 53 Ark. 353, 13 S.W. 1103. (2) "The provision as to keeping books of account requires that the insured shall keep such books in such a manner as that they shall constitute a record of business transactions which a person of ordinary intelligence accustomed to accounts can understand." Briefs on the Law of Ins., Cooley, vol. 2, p. 1822, and cases cited. (3) If by any process of reasoning the book alleged to have been kept by respondent is a substantial compliance with his contract, then he breached the contract by failing to produce the same, before he brought suit. Jube v. Ins. Co., 28 Barb. 412. (4) It was as much the duty of the insured to produce his books, if he had any, after the fire upon demand of the insurer as it was to keep books. Raines v. Ins. Co. (Tex. C. C. A.), 77 S.W. 424. (5) The court erred in overruling defendant's demurrer to the evidence as to the insurance on merchandise. The undisputed evidence shows a total failure on the part of respondent to comply with the requirements of the iron safe clause. (6) The court erred in giving instruction No. 5, on the part of respondent. 1st. It is unintelligible. 2d. It is erroneous because it tells the jury that if plaintiff's failure to comply with the iron safe clause was not material to the risk, then such failure was no defense. This court has repeatedly held that failure to comply with the iron safe clause precludes a recovery, and the question of materiality to the risk is not involved. Carp v. Insurance Co., 116 Mo.App. 542. (7) Instructions 1 and 2 are erroneous because they submit to the jury a question of law, i.e., "provided, however, said policy of insurance as to said merchandise has not been forfeited by any act or omission of the plaintiff." How could the jury determine whether or not the policy had been forfeited without being advised what act or omission on the part of plaintiff would work a forfeiture?
R. S. Kathan and A. W. Mullins for respondent.
(1) The instructions given by the court to the jury on behalf of the plaintiff are correct. Instructions 1 and 2 did not submit to the jury a question of law. These instructions directed the jury to find for plaintiff if they found the facts for him hypothetically stated therein, "provided, however, said policy of insurance as to said merchandise has not been forfeited by any act or omission of the plaintiff." Such instructions have long since received the approval of the Supreme Court of this State. Russell & Co. v. Insurance Co., 55 Mo. 585. (2) And if the defendant desired to present its theory of the case to the jury as to the alleged forfeiture of the policy of insurance by the plaintiff it was its duty to ask the court to give appropriate instructions in that regard, and having failed to do so it cannot now be heard to complain. Hall v. Jennings, 87 Mo.App. 627; Wilson v. Railroad, 122 Mo.App. 667; Bank v. Ragsdale, 171 Mo. 186; Cornwell v. Transit Co., 106 Mo.App. 135; Coleman v. Drane, 116 Mo. 394. (3) The defendant's objections to plaintiff's fifth instruction are not well taken. They are two: (1) That the instruction is "unintelligible." As to this we are pursuaded that said instruction is unintelligible to defendant, its agents and attorneys only. (2) That "it tells the jury that if plaintiff's failure to comply with the iron safe clause was not material to the risk, then such failure was no defense." The answer to that objection is that the instruction did not so direct the jury. A substantial compliance with the iron safe clause is all the law requires. The defendant's answer is inconsistent in first denying the insurance on the merchandise and then, without admitting the insurance as to the merchandise pleading alleged stipulations and conditions of the policy to show forfeiture. Bank v. Stone, 93 Mo.App. 292; Darrett v. Donnelly, 38 Mo. 492; Adams v. Trigg, 37 Mo. 141; Vette v. Evans, 111 Mo.App. 588.
The plaintiff's action is to recover on two fire insurance policies and is contained in two counts. The first count declares on a policy issued by defendant on July 1, 1908, insuring a certain building in the sum of one thousand dollars; store, furniture and fixtures therein in the sum of two hundred dollars, and general stock of merchandise in the sum of eight hundred dollars, for the period of one year.
The second count is to recover on a policy issued November 11, 1907, to Jones & Fletcher which was transferred to plaintiff; insuring stock of general merchandise in the sum of eight hundred dollars, for one year.
On June 1, 1908, plaintiff exchanged a farm for the store building, furniture, fixtures and merchandise, and he took possession and commenced business a few days thereafter.
Each of the policies contained what is known as the iron safe clause which is pleaded as a defense on the ground of plaintiff's failure to comply therewith. It reads as follows:
"The assured shall take an itemized inventory of the stock hereby covered at least once a year during the life of this policy and shall keep books of account correctly detailing all purchases and sales of stock and shall keep said inventory and books of account securely locked in a fire proof safe at night, or in some place secure against fire in another building during all the times said store is not open for business, and in case of loss the assured agrees and covenants to produce all such books and inventories, and in event of failure to produce the same this policy shall be null and void and no suit at law shall be maintained thereunder for any loss or claim for damage under said policy."
Fletcher, one of the former owners of the building and stock, in connection with the plaintiff took an inventory of the stock beginning June 1, 1908, and finishing on the 4th day of that month.
Plaintiff carried on the business of buying and selling until August 4, 1908, when during the night the building and contents were destroyed by fire.
It is conceded that defendant was notified of...
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