Fields v. German American Ins. Co.

• Decision Date: 08 June 1909
• Citation: 140 Mo. App. 158,120 S.W. 697
• Parties: FIELDS v. GERMAN AMERICAN INS. CO.
• Court: Missouri Court of Appeals

120 S.W. 697

140 Mo. App. 158

FIELDS v. GERMAN AMERICAN INS. CO.

St. Louis Court of Appeals. Missouri.

June 8, 1909.

1. INSURANCE (§ 388)—CONDITIONS—OTHER INSURANCE—WAIVER.

Where defendant's agent, who wrote the fire policy sued on, was notified of other insurance when it was issued, and stated that insured were entitled to carry still more insurance, a provision in the policy against other insurance was waived.

2. INSURANCE (§ 390)—FIRE POLICY—CHANGE OF INTEREST.

The fact that one of the members of a firm, after the date of a fire policy, sold his interest to other members of which the insurer's agent was duly notified, did not constitute a breach of the condition against change of interest where no forfeiture had been declared on that ground until after loss.

3. INSURANCE (§ 553)—FIRE POLICY—FALSE SWEARING.

Where, after loss under a policy insuring property of a firm, the claim under the policy was assigned to plaintiff, his right of action was not defeated by the false swearing of one member of the firm as a witness in the action under a provision of the policy that it should be void if insured was guilty of false swearing touching a material matter relating to the insurance.

4. INSURANCE (§ 335) — FIRE POLICY — ACCOUNTS.

Where insured kept full accounts of their business, as required by a fire policy, the right of their assignee to recover thereon was not defeated by the fact that a purchase of goods amounting to $3,903.69 by mistake was posted as $4,903, nor by the fact that the firm sold coupons redeemable in goods, and that the sales of the checks and not the sales of the goods, when paid for in the checks, were entered in the books.

Appeal from Circuit Court, Ste. Genevieve County; Chas. A. Killian, Judge.

Action by S. M. Fields against the German American Insurance Company. Judgment for plaintiff, and defendant appeals Affirmed.

Action on a contract of fire insurance to recover $1,500 as defendant's proportion of the liability for damage done to the insured property by a fire. The policy ran from November 7, 1904, for one year, on a stock of general merchandise contained in a two-story frame building, standing on lot 6, block 5, in the town of Parma, Mo. The policy was issued to F. P. Wrather & Co., and was assigned by F. P. Wrather, T. B. Wrather, and L. C. Jones, composing said firm, to plaintiff after the fire occurred. The petition is in the usual form, alleges the facts supra, and says a fire occurred and destroyed the stock on July 4, 1905, while the policy was in force, plaintiff's assignors complied with all the conditions required of them by the terms of the policy, and in due time after the fire, and 60 days before the commencement of this action, gave defendant due notice of the loss, demanding payment, and defendant refused to pay. The answer began with a denial of such allegations of the petition as are not afterwards admitted, then admitted defendant issued the policy to F. P. Wrather & Co. for $1,500 on a stock of merchandise; denied its assignment by said firm to plaintiff after the fire; denied the firm, when the policy was issued and at all times afterwards to the occurrence of the fire, had an interest in the insured property as owners thereof, exceeding the insurance on the stock; denied the fire occurred on July 4, 1905, while the policy was in force, and while the merchandise was in said house; denied said stock was destroyed by fire, but admitted the stock and fixtures in the building were damaged by a fire; denied F. P. Wrather & Co. performed all the conditions required of them, or gave defendant notice of the fire and loss more than 60 days before the commencement of this action, demanded payment of the sum insured, or furnished proof of loss as required by the contract. The answer next states certain terms of the policy, to wit, that the insured would take an itemized inventory of the stock at least once in each calendar year, and, unless such inventory should have been taken in 12 months prior to the date of the policy, one should be taken in detail in 60 days after said date, or the policy should become null and void after the expiration of said 60 days, on demand of the company and return of the unearned premium; that the insured should keep a set of books clearly presenting a complete record of the business transacted, including all purchases, sales, and shipments of stock, both for cash and credit, from the date of the inventory, and during the life of the policy; should keep such books and inventory securely locked in a fireproof safe at night and at all times when the building was not open for business; and, failing to do this, should keep such books and inventory in a place not exposed to a fire which would burn the building; that the insured agreed and warranted it would produce said books and inventory for inspection of the company, and, upon failure to do so, the policy should become null and void; that it was part of the consideration of...