Johnson v. Mercantile Town Mut. Fire Ins. Co.

• Decision Date: 09 July 1906
• Citation: 120 Mo. App. 80,96 S.W. 697
• Parties: JOHNSON et al. v. MERCANTILE TOWN MUT. FIRE INS. CO.
• Court: Missouri Court of Appeals

96 S.W. 697

120 Mo. App. 80

JOHNSON et al. v. MERCANTILE TOWN MUT. FIRE INS. CO.

St. Louis Court of Appeals. Missouri.

July 9, 1906.

1. INSURANCE — FIRE POLICY — IRON-SAFE CLAUSE.

The iron-safe clause in a fire policy is a promissory warranty, and failure to substantially comply with it does not avoid the policy, but precludes recovery.

2. SAME — ACTION ON POLICY — BURDEN OF PROOF.

Where, in an action on a fire policy, the answer denies the allegations of the petition showing full performance by plaintiff, and specially pleads failure to observe the iron-safe clause, the burden is on plaintiff to show compliance with such clause.

3. SAME — COMPLIANCE WITH IRON-SAFE CLAUSE.

A fire policy required insured to keep a set of books showing all purchases and sales for cash and credit from date of inventory, and to keep them in a fireproof safe. In an action on the policy an inventory made prior to the issuance of the policy was read in evidence, but it appeared that no record was kept save one of credit sales and that such book not being in the safe was destroyed. Duplicate bills of goods purchased, made at insured's request after the fire were also put in evidence. Held, that there was no substantial compliance with the policy.

Appeal from Circuit Court, Taney County; F. C. Johnston, Judge.

Action by Adam Johnson and others against the Mercantile Town Mutual Fire Insurance Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded with directions.

On January 31, 1904, for a consideration of $87 to it paid by plaintiffs, defendant issued and delivered to them its policy of insurance, insuring them against loss by fire for one year as follows: Five hundred dollars on their frame store building, located in the town of Brown Branch, Taney county, Mo., and $3,500 on their stock of general merchandise kept in said store. On October 22, 1904, the store building and its contents were totally destroyed by fire. The suit is on the policy to recover the full amount of the insurance. Defendant admitted its liability to pay the $500 insurance on the store building. In respect to the insurance on the stock of merchandise the defendant set forth in its answer the following stipulations contained in the contract of insurance, and alleged the failure of plaintiffs to comply with said stipulations, warranty, and conditions: "(2) The assured shall keep a set of books which shall clearly and plainly present in detail a complete condition of business transacted, including all purchases, sales and shipments of said stock, both for cash and credit from the date of the inventory, provided for in the first section of this clause, and during the continuance of this policy. (3) The assured shall keep such books and inventory and also the last-preceding inventory, securely locked in a fire-proof safe at night and at all times when the building mentioned in this policy or the portion thereof containing the stock described therein, is not actually open for business; or failing in this the assured keep such books and inventories at night and at all such times in some place not exposed to a fire which would ignite or destroy the aforesaid building; and in case of loss the assured specifically warrant, agrees and covenants to produce such books and inventories for the inspection of said company. (4) In the event of failure on the part of assured to keep and produce such books and inventories for the inspection of this company, this entire policy shall be null and void and such failure shall constitute a perpetual bar to any recovery thereon." Plaintiff's evidence shows that in November, 1903, Johnson, one of the plaintiffs, bought the stock of goods from one Adams, at which time duplicate invoices of the goods then on hand were taken. The invoice retained by Johnson was destroyed when the store burned. The duplicate was produced, identified, and read in evidence. Without taking any invoice, on an estimate that there was $5,500 worth of goods on hand, Thomas, the other plaintiff, in December, 1903, bought an interest in the store and became the partner of Johnson. Plaintiffs kept no books showing the amounts of their purchases or cash sales. The only book they kept was a book of accounts of the goods sold on credit. This book was left on top of the safe and was destroyed the night of the fire. The bills or invoices of purchases furnished by the wholesale dealers from whom plaintiffs bought goods were also consumed in the fire. Plaintiffs had an iron safe but testified there was no room in it for these bills or invoices. Until the 1st of April, plaintiffs kept no account whatever of cash sales. It appears they operated a flour mill at Brown Branch, bought some wheat and sold flour. About the 1st of April they commenced to keep a cash account, but the receipts of the store and the mill were counted up at the end of each day and the gross sum entered in the cashbook as one item; so that plaintiffs were unable to state how much cash was received on account of sales of goods on any day during the time the cash account was kept. After the fire the plaintiffs wrote to the wholesale houses from whom they had purchased goods (after the date of the policy) asking for duplicates of the bills of their purchases. The following are samples of the answers they received:

                            "Springfield, Mo., Nov. 5, 1904
                

"Messrs. Johnson & ...