Major v. Insurance Co. of North America

• Decision Date: 18 April 1905
• Citation: 86 S.W. 883,112 Mo. App. 235
• Parties: MAJOR v. INSURANCE CO. OF NORTH AMERICA.
• Court: Missouri Court of Appeals

86 S.W. 883

112 Mo. App. 235

MAJOR v. INSURANCE CO. OF NORTH AMERICA.

St. Louis Court of Appeals. Missouri.

April 18, 1905.

INSURANCE — IRON-SAFE CLAUSE — CONSTRUCTION—ASSIGNMENT OF CLAIM—CHAMPERTY —PLEADING.

1. Where an insurance policy warranted that insured should keep an inventory and his books of account in a fireproof safe during the hours when his drug store "was not open for business," and insured was in the habit of keeping his store open for business until 11 or 12 o'clock at night, the policy did not require that such books should be placed in his safe during his temporary absence from the store at about 9 o'clock on the evening of the fire, answering a professional call, as a physician, about a block distant from the store.

2. In an action on an insurance policy by an attorney to whom the claim was assigned, the defense of champerty, not pleaded, was unavailable.

Appeal from Circuit Court, Franklin County; Wm. A. Davidson, Judge.

Action by Elliott W. Major against the Insurance Company of North America. From a judgment for plaintiff, defendant appeals. Affirmed.

Reed, Yates, Mastin & Howell, for appellant. Barclay & Fauntleroy, for respondent.

Opinion.

GOODE, J.

This is an action on a policy of insurance issued to O. M. Willis, and covering a stock of drugs, wines, and liquors kept for retail sale in a two-story brick building in the town of Carruthersville, Mo. The policy contained the following clause: "It is expressly warranted by the assured that the assured shall take an inventory of the stock hereby covered at least once a year, during the life of this policy, and shall keep books of account correctly detailing all purchases and sales of said stock and shall keep such inventory and books securely locked in a fireproof safe or in some place secure against fire in another building during the hours said store is not opened for business, and in case of loss the assured agrees and covenants to produce all of said books and inventory and in the event of failure to produce on demand, this policy shall be void and no suit or action at law shall be maintained thereon for such loss." Willis, the proprietor of the drug store, was a practicing physician, and in the habit of answering calls for his professional services. His custom was to keep his drug store open for business until 11 or 12 o'clock at night. The fire which destroyed the property occurred Sunday night, January 18, 1903, about 9 o'clock. The store had been open through the evening prior to the fire, and Willis was at work at his desk. He kept an iron safe in his storeroom, but his books were not in it when the fire occurred. They were lying either on the desk or a counter. Just before the fire broke out, Willis was called to see a lady patient who was reported to be very ill. Her residence was about a block distant, and Willis expected to be absent from the store but a few minutes. He was absent from 10 to 15 minutes, and, when he returned, found the building in flames. His stock of merchandise was burned, and with it his business books. Willis could not remember whether or not he locked the door of the store when he went out.

The principal defense is that the clause of the policy requiring an inventory of the stock and books of account to be securely locked in a fireproof safe during the hours the store was not open for business was violated. As the facts bearing on this...