Keet-Rountree D. G. Co. v. Mercantile Town Mut. Ins. Co.

• Citation: 100 Mo. App. 504,74 S.W. 469
• Parties: KEET-ROUNTREE DRY GOODS CO. v. MERCANTILE TOWN MUT. INS. CO.
• Decision Date: 28 April 1903
• Court: Court of Appeal of Missouri (US)

74 S.W. 469

100 Mo. App. 504

KEET-ROUNTREE DRY GOODS CO. v. MERCANTILE TOWN MUT. INS. CO.

Court of Appeals at St. Louis, Missouri.

April 28, 1903.

FIRE INSURANCE—STIPULATIONS IN POLICY— WAIVER—CONDITIONS.

1. A stipulation in a fire policy which requires the assured to keep an inventory in a fireproof safe, or in some place not exposed to destruction by fire, otherwise the policy to be void, may be waived by insurer.

2. An insurer who made an investigation as to the value of a stock of merchandise destroyed by a fire occurring at night did not thereby waive the stipulation of the policy requiring the assured to keep an inventory in a fireproof safe, though the investigation was made after the assured had informed the insurer's representative that the inventory had been left in a desk in the store and burned, where before the investigation the representative and assured expressly stipulated in writing that the investigation should be without prejudice to either party.

3. An agreement, signed by an assured under a fire policy and a representative of the insurer after a loss, but before anything was done by the latter to ascertain the amount of the loss, providing that any action taken by the insurer in determining the cause of the fire and the amount of the loss should not waive the conditions of the policy nor the rights of either of the parties, is valid.

4. An insurer, under fire policies insuring a store building in a fixed amount and the stock of merchandise therein in another and separate sum, who stated in a letter to the assignee of the policies after a loss, in a response to a letter demanding a settlement, that if the settlement of the policies included payment of their gross amount the insurer would decline, did not thereby waive the stipulation in the policies requiring the assured to safely keep an inventory of the stock, and deliver the same, in case of loss, to the insurer on call.

5. A compliance with the stipulation in a fire policy which required the assured to keep an inventory of the stock of merchandise insured in a fireproof safe was a condition precedent to the assured's right of recovery on the policy for a loss.

Appeal from Circuit Court, Newton County; H. C. Pepper, Judge.

Action by the Keet-Rountree Dry Goods Company against the Mercantile Town Mutual Insurance Company. From a judgment for plaintiff, defendant appeals. Modified.

On January 15, 1901, the defendant, the Mercantile Town Mutual Insurance Company, a corporation organized under 2 Rev. St. p. 1902, c. 119, art. 11, issued to T. H. Wimpey a policy insuring him for the term of one year thereafter, against all loss by fire to an amount not exceeding $1,350, this risk attaching to and covering $350 on the building, $960 on stock of miscellaneous and assorted merchandise, and $40 on store fixtures, including showcases and iron safe. On February 2d following, defendant issued a second policy to Wimpey, insuring the same stock of merchandise in the sum of $1,350, and in force for a year thereafter. The property insured was situated in the town of Tiff City, McDonald county, Mo., and about 2 o'clock a. m. of September 8, 1901, the building and contents were totally destroyed by fire. The insured notified the defendant of the loss, and received from it blank proofs for statements of loss under the policies, and within two weeks W. C. West, its representative, arrived at the scene of the conflagration, and before any steps were taken towards examination of the loss the following instrument was executed:

"It is hereby mutually stipulated and agreed by and between T. H. Wimpey, party of the first part, and the Mercantile Town Mutual Ins. Co., party of the second part, that any action taken by said party of the second part in investigating the cause of fire or investigating and ascertaining the amount of loss and damage to the property of the party of the first part, caused by fire alleged to have occurred on 7th day of Sept., 1901, shall not waive or invalidate any of the conditions of the policies of the party of the second part, held by the party of the first part, and shall not waive or invalidate any rights whatever of either of the parties to this agreement.

"The intent of this agreement is to preserve the rights of all parties hereto and provide for an investigation of the fire and the determination of the amount of the loss or damage in order that the party of the first part may not be delayed unnecessarily in his business and in order that the amount of his claim may be ascertained and determined without regard to the liability of the party of the second part.

"Witness our hands and seals in duplicate this 18th day of Sept., 1901. Thos. H. Wimpey. [L. S.] The Mercantile Town Mutual Insurance Co., by W. C. West, Special Agent. [L. S.]"

West then called for the last inventory, which had been taken about the end of November, 1900, and also for the books of account. Wimpey informed him the inventory had been left in the desk and was burned, but he exhibited his books, excepting one, termed by Wimpey a "Daybook," which was destroyed in the fire, and excepting also a memorandum book of stock on hand, furniture, and fixtures, which he did not submit to West, and which showed the stock invoiced $2,760.

West remained several days, and, after making investigations of the loss, aided by Wimpey, at his departure remarked the company had 60 days in which to make settlement. Subsequently the proofs of loss were completed, and mailed by Wimpey to the company. Later the policies were assigned to plaintiff, and its counsel received from defendant the following:

                     "Mercantile Town Mutual Insurance
                                  Company
                     "Rialto Building, St. Louis, Mo
                        "St. Louis, Mo., Dec. 24th, 1901
                 "Mr. Jno. S. Farrington, Springfield, Mo
                

"Dear Sir: In reply to your letter of the 19th inst. in which you state this company's policies No. 10037 and 10364, issued to J. H. Wimpey of Tiff City, Mo., have been assigned to Keet and Rountree Dry Goods Company, and unless you can get them settled up within a short time it will be necessary to bring suit on them, we beg to say we are...