Johnson v. Mercantile Town Mutual Fire Insurance Company
| Decision Date | 09 July 1906 |
| Parties | JOHNSON et al., Respondents, v. MERCANTILE TOWN MUTUAL FIRE INSURANCE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Taney Circuit Court.--Hon. John Moore, Judge.
REVERSED AND REMANDED (with directions).
STATEMENT.--On January 31, 1905, for a consideration of eighty-seven dollars 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, Missouri, and thirty-five hundred dollars 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 five hundred dollars 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 plaintiff to comply with said stipulations, warranty and conditions:
Plaintiffs' 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 fifty-five hundred dollars 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 tip 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 first of April plaintiffs kept no account whatever of cash sales. It appears they operate a flour mill at Brown Branch, bought some wheat and sold flour. About the first 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 cash book 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., Oct. 1, 1904.
Due in Wholesale Hardware.
Due After 313, 315 South St.
Over the objections of the defendant these letters or statements were admitted in evidence. Plaintiff introduced other evidence, consisting of the mere opinions of the witnesses, tending to show the stock of merchandise on hand at the time of the fire was as good and as valuable as the stock on hand at the date of the policy.
It was admitted that the defendant is a town mutual insurance company, incorporated and doing business under the laws of this State. Defendant offered no evidence.
At the request of the plaintiffs the court gave the following instruction to the jury:
"You are instructed that under the law and evidence in this case, the plaintiffs are entitled to recover the sum of $ 500 for the loss of the building, and the sum of $ 3,000 for the loss of the stock of merchandise, and ten per cent damages on the whole amount, or $ 350 for their damage, together with a reasonable attorney's fee."
The following instruction asked by the defendant was refused:
"The court instructs the jury that under the pleadings and evidence, the plaintiffs are not entitled to recover as far as the insurance on the stock of merchandise is concerned, and you will find for the defendant as to the insurance on the stock of merchandise."
The jury returned the following verdict:
"We, the jury, find the issues for the plaintiffs in the sum of $ 500 for the loss of their building, and the sum of $ 3,000 for the loss of merchandise, together with six per cent from December 20, 1903, and ten per cent damages, and an attorney's fee of $ 200."
Defendant filed a timely motion for new trial, which the court overruled, whereupon defendant duly appealed to this court.
Judgment reversed and cause remanded.
Fyke & Snider for appellant.
The court erred in overruling defendant's demurrer to plaintiffs' evidence. The evidence shows without dispute, in fact plaintiffs admitted that they had not kept books as required by the policy. 13 Am. and Eng. Ency. of Law (2 Ed.), p. 355. Ins. Co. v. Wilkinson, 13 S.W. 1103; Kelly Goodfellow Shoe Co. v. Ins. Co., 28 S.W. 1027; Ins. Co. v. Allen, 24 So. 399; Id., 30 So. 537; Ins. Co. v. Brownell, 62 Ark. 43, 34 S.W. 83. Ins. Co. v. Parker, 61 Ark. 207; Western Assurance Co. v. Altherium (58 Ark.), 25 S.W. 1067; Ins. Co. v. Stubbs, 98 Ga. 754, 27 S.E. 180; Ins. Co. v. Sprague, 8 Ind.App. 275; Goldman v. Ins. Co., 48 La. 220; Jones v. Ins. Co., 38 F. 19; Ins. Co. v. Forehand, 169 Ill. 626, 48 N.E. 830; Lozaro v. Ins. Co., 78 F. 278; Sowers v. Ins. Co., 85 N.W. 763; Roberts v. Ins. Co., 48 S.W. 559; Davis v. Ins. Co., 78 N.W. 596; Ins. Co. v. Crist, 56 S.E. 658; Redunson v. Ins. Co., 34 So. 18; Keet Rountree D. G. Co. v. Ins. Co., 100 Mo.App. 504, 74 S.W. 469; Fire Assn. v. Calhoun, 67 S.W. 153; Hester v. Ins. Co., 41 S. E. (Ga.) 522; Crigler v. Ins. Co., 49 Mo.App. 11; Gibson v. Ins. Co., 82 Mo.App. 515; Howerton v. Ins. Co., 105 Mo.App. 575, 80 S.W. 27; Ins. Co. v. Allen, 77, P. 529.
Price & Ford for respondents.
(1) The court did not err in overruling defendant's demurrer to plaintiffs' evidence, as there was abundant evidence on which to submit the case to the jury. This was a total loss both of the building and of the stock of merchandise contained therein, and the rule is that the measure of damages shall be the full amount for which the same was insured. R. S. 1899, sec. 7969; O'Keefe v. Ins Co., 140 Mo. 558; Burnett v. Ins. Co., 68 Mo.App. 343; Meyer Bros. v. Ins. Co., 73 Mo.App. 166. (2) The provisions of the policy requiring the taking of an inventory and keeping a record of purchases and sales, was for the purpose of arriving at the amount of goods destroyed, and was in this case complied with. Burnett v. Ins. Co., 68 Mo.App. 343; Malin v. Ins. Co., 105 Mo.App. 625, 80 S.W. 56. (3) The fact that plaintiffs kept books, although they were imperfect, is not material, as the evidence abundantly shows that at the time of the fire plaintiffs had on hands goods to the amount of $ 6,500 or $ 7,000, which was largely in excess of the amount for which they were insured. Hanna v. Ins. Co., 109 Mo.App. 152, 82 S.W. 1115. (4) When the whole record in a case discloses that a judgment appealed from is for the right party, it is the imperative duty of the appellate court to affirm it notwithstanding erroneous instructions may have been given, and errors...
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