Goldman v. Indemnity Ins. Co.

• Decision Date: 29 June 1934
• Docket Number: No. 22753.,22753.
• Citation: 72 S.W.2d 866
• Parties: GOLDMAN v. INDEMNITY INS. CO. OF NORTH AMERICA.
• Court: Missouri Court of Appeals

72 S.W.2d 866

GOLDMAN v. INDEMNITY INS. CO. OF NORTH AMERICA.

No. 22753.

St. Louis Court of Appeals. Missouri.

June 29, 1934.

Rehearing Denied July 10, 1934.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be published in State Reports."

Action by Ben Goldman against the Indemnity Insurance Company of North America. Verdict for defendant. From an order granting plaintiff's motion for a new trial, defendant appeals.

Affirmed and remanded.

A. A. Alexander, of St. Louis, for appellant.

John P. Griffin, of St. Louis, for respondent.

McCULLEN, Judge.

This action is based upon a policy of insurance issued to respondent, hereinafter called plaintiff, by appellant, hereinafter referred to as defendant, wherein defendant promised to indemnify plaintiff against loss on account of robbery up to the sum of $1,500. The suit was begun in a justice court, where there was a judgment for plaintiff, from which defendant appealed to the circuit court. A trial before that court and a jury resulted in a verdict for defendant. Plaintiff's motion for a new trial was sustained. From the order sustaining the motion for a new trial, defendant appeals.

Plaintiff's petition alleged that on October 31, 1930, defendant issued its policy of insurance to plaintiff, wherein it promised to indemnify plaintiff, for one year from said date, for all loss occurring on plaintiff's premises in the city of St. Louis, by robbery of money, securities, and merchandise, not to exceed the sum of $250; that, by rider attached to the policy and made a part thereof, the amount of the indemnity was increased to $1,500. Plaintiff alleged that he complied with the terms and conditions of the policy and paid the premium thereon, but that defendant canceled the policy on April 15, 1931, and returned to plaintiff the premium for the balance of the period from April 15, 1931, but retained the premium from the date of the issuance of the policy until said 15th day of April, 1931.

Plaintiff's petition further alleged that on March 10, 1931, he suffered a loss of $577.75 in his premises by being held up and robbed of said amount in cash; that he notified defendant of said robbery and loss, made proof thereof on a form provided by the defendant; that defendant made an investigation thereof and refused to pay said loss. Plaintiff prayed judgment in the sum of $577.75, with interest from April 1, 1931, and also prayed for 10 per cent. of said amount as damages, and a reasonable attorney's fee in the sum of $100, because of defendant's vexatious refusal to pay the claim.

Defendant's answer contained a general denial, followed by allegations that the policy contained a clause in which it is provided that the defendant company shall not be liable for any loss unless books and accounts are kept by the assured from which the defendant company can accurately determine the actual amount of loss, and that no books and accounts were kept at any time by plaintiff from which the defendant company could accurately determine the actual amount of loss, if any, sustained by plaintiff at the time mentioned in plaintiff's petition; that, by reason of plaintiff's failure to keep and have said books and accounts, plaintiff is not entitled to recover.

The policy of insurance in question contains the following provision: "This agreement is subject to the following conditions." Among the conditions appearing in the policy is the following: "Hazard Limitations: D. The Company shall not be liable for any loss: (a) unless the robbery is established by reasonable evidence; (b) unless the Assured has taken all reasonable precautions to safeguard the property; (c) unless books and accounts are kept by the Assured, from which the Company can accurately determine the actual amount of loss. * * *"

The policy also contained the following: "Cancellation: H. This Policy may be cancelled at any time at the request of the Assured, or by the Company, upon written notice to the other party, stating when thereafter cancellation shall become effective, and the date of cancellation shall then be the end of the policy period. If such cancellation is at the Company's request, the earned premium shall be computed and adjusted pro rata. If such cancellation is at the Assured's request, the earned premium shall be computed and adjusted at short rates, in accordance with the table printed hereon. Notice of cancellation mailed to the address of the Assured as given herein shall be a sufficient notice, and the Company's check, similarly mailed, a sufficient tender of any unearned premium."

The evidence shows that plaintiff was engaged in the cigar, cigarette, tobacco, and candy business, operating a store at 3218 Easton avenue, in the city of St. Louis, doing some wholesale and some retail business therein. At about 8 o'clock on the evening of March 10, 1931, two colored boys, Abe Taylor and James Pittman, entered plaintiff's store, and at the point of a gun robbed plaintiff of a sum of money. According to plaintiff's testimony, the amount of which he was robbed was $577.75. According to the testimony of the two colored boys above named, the amount taken from plaintiff was the sum of $6.

The evidence showed that both colored boys pleaded guilty to the charge of committing the robbery involved in this case, and also several other robberies. One of them, James Pittman, appeared at the trial as a witness for defendant, and testified concerning the robbery in the case at bar, as well as the other robberies mentioned.

The other colored boy, Abe Taylor, being confined as a prisoner at Boonville, Mo., gave his testimony, as a witness for defendant, by way of deposition.

The evidence shows that plaintiff, immediately after the robbery, notified the police department thereof, and on March 11, 1931, the day after the robbery, notified defendant of the loss he had sustained in said robbery. On the last-named date R. B. Mosely, an adjuster representing defendant, visited plaintiff's place of business, at which time plaintiff gave him a written statement concerning the robbery. In this connection plaintiff testified:

"Q. Did you give him a statement about it? A. Sure.

"Q. I believe you gave him a written statement about it? A. He wrote everything I told him and I signed whatever papers he wrote."

In the written statement referred to, after describing the robbery, plaintiff described his method of conducting his business as follows: "The way that I keep track of my amounts is by counting my money at various intervals. The amount given as a loss was counted at 7:00 P. M. on that day. I do not know what was taken in after that time. I do business on strictly cash basis paying for my merchandise with cash or checks taken in and depositing money when my cash receipts get too large. I do not enter my sales in a book and do not keep a record of cash on hand except by counting it. I do not have a cash register because of the possibility of some one gauging my sales by the bell. I do a wholesale and retail business. I accept checks from merchants for merchandise only. I bank at least every two days unless the money is to be used for a purchase and I then keep it on hand. * * *"

On March 28, 1931, plaintiff executed before a notary public his proof of loss on a form furnished by defendant. On March 31, 1931, defendant sent a letter to plaintiff, in which defendant called plaintiff's attention to clause D of the policy, and quoted therein a part of clause D, wherein it is provided that the company shall not be liable for any loss unless books and accounts are kept by the assured from which the company can accurately determine the actual amount of the loss. In this letter defendant advised plaintiff that, since it had developed that at the time of the loss plaintiff was not keeping any book record of his business transactions, and did not keep a cash register, and had no other records available to check accurately the actual loss sustained through the robbery, said loss did not come within the policy coverage, and the company could not honor the claim.

Plaintiff's own testimony showed that he kept no books or records or accounts of his business transactions at his store. He also testified that he kept no cash register. The only book plaintiff kept, according to his own testimony, was a bank book showing deposits made by him in the Cass Bank & Trust Company. This bank book merely showed different amounts deposited on various dates, beginning with an entry: "1-2-31 ...... $634.47," and ending with an entry: "3-10-31 ...... 828.61." There were twenty such entries for varying amounts on different dates in January, February, and March, 1931, the highest amount entered being as follows: "2-24-31 ...... 1,343.72." The lowest amount shown was: "1-23-31 ...... 138.67." Nothing whatsoever appeared in the bank book from which any one could tell what such entries represented without the aid of testimony by some one having knowledge thereof. It is obvious, therefore, that plaintiff did not keep any such books and accounts as would enable the defendant company to "accurately determine the actual amount of loss," as he was required to do under clause D of the policy, as a condition precedent to defendant's liability for any loss. It therefore remains to be determined whether or not there was evidence showing a waiver by the defendant of plaintiff's breach of that condition of the policy.

Plaintiff contends in this court that there was evidence to show two grounds of waiver: First, the retaining by defendant of the premium on the policy after defendant learned of plaintiff's breach of the condition in clause D; and, second, defendant's action in submitting to plaintiff a form for plaintiff to make proof of loss, and requesting plaintiff to make such proof of loss. With...