Malin v. Mercantile Town Mutual Insurance Company

• Decision Date: 29 March 1904
• Citation: 80 S.W. 56,105 Mo.App. 625
• Parties: MALIN, Respondent, v. MERCANTILE TOWN MUTUAL INSURANCE COMPANY, Appellant
• Court: Missouri Court of Appeals

80 S.W. 56

105 Mo.App. 625

MALIN, Respondent, v. MERCANTILE TOWN MUTUAL INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 29, 1904

[Copyrighted Material Omitted]

Appeal from Greene Circuit Court.--Hon. J. T. Neville, Judge.

AFFIRMED.

STATEMENT.

On January 13, 1902, plaintiff was a retail dealer in general merchandise at Denlow, Douglas county, Missouri. On that day defendant, the Mercantile Town Mutual Fire Insurance Company organized under the laws of the State of Missouri, for an agreed premium paid in cash, issued its policy of insurance to plaintiff insuring him against loss or damage by fire for one year as follows: Two hundred dollars on his two-story frame building occupied as a retail store; one hundred and fifty dollars on store furniture and fixtures, including show cases and iron safe; fifteen hundred dollars on stock of merchandise while contained in the store. The policy contained the following stipulations:

"Three-Fourths Value Clause--It is part of the consideration of this policy and the basis upon which the rate or premium is fixed, that in the event of loss this company shall not be liable for a greater amount than three-fourths of the actual cash value of the property covered by this policy at the time of such loss, and in case of other insurance, whether policies are concurrent or not, then for only its pro rata proportion of such three-fourths.

"Inventory and Iron Safe Clause--It is expressly warranted by the assured: first, that the assured shall take a complete itemized inventory of the stock hereby covered at least once a year during the life of this policy, and unless such inventory has been taken within twelve months prior to the date of this policy, the same shall be taken within thirty days after the date of this policy, or this policy shall be null and void from such date.

"Second--The assured shall keep a set of books which shall clearly and plainly present a complete record of business transacted, including all purchases, sales and shipments, both for cash and credit, from date of inventory provided for in first section of this clause, and during the continuance of this policy . . . and in the event the insured fails to so keep said books and inventories this policy shall be null and void. . . .

"This entire policy shall be void if the hazard be increased by any means within the control or knowledge of the insured."

On February 20, 1902, the store building and its contents, except about one hundred and fifty dollars worth of goods, were destroyed by fire. Plaintiff gave notice to the company of the fire and made out and delivered to it timely proofs of loss. The defendant company denied all liability on the policy. This suit was brought on the policy to recover the loss.

The petition is in the ordinary form.

The answer is as follows:

"The defendant, for amended answer to the petition of plaintiff, admits that it is a corporation organized under the laws of the State of Missouri, and alleges that it is organized, incorporated and doing business under and by virtue of an act of the Legislature of the State of Missouri, relating to town mutual insurance companies, and is entitled to the benefits and privileges, and subject to the provisions of such act.

"Defendant admits that on the thirteenth day of January, 1902, it made its policy of insurance sued on.

"Further answering defendant alleges that said policy was issued upon a written and printed application therefor, made and signed by M. Malin, wherein it was agreed and warranted that if the conditions and circumstances were changed or risk increased during the term of said policy said insured should notify the company immediately of the same. Otherwise said policy to be void. Defendant alleges that after said policy was issued and before the fire mentioned in the petition and to-wit, on the -- day of January, 1902, a fire occurred in said building which was originated through the flue thereof, whereby said building was slightly damaged; that after the fire the said insured caused certain changes to be made in said building which weakened the flue and increased the risk of fire in said building; that it was the duty of plaintiff to have notified this defendant of said fire and have informed defendant of the changes made in said building which increased the said risk as aforesaid; but notwithstanding it was the duty of plaintiff to have so notified defendant, plaintiff never did at any time previous to the fire mentioned in the petition, give defendant any notice of said first fire or of said changes of said building, by reason whereof defendant says plaintiff is not entitled to recover.

"Further answering, defendant alleges that after said policy was issued, one C. P. Malin, the son of plaintiff, was in charge of said store as plaintiff's agent and employee. That on the evening prior to the fire mentioned in the policy, he built in the stove of said store, which was connected with the flue herein referred to, a fire composed of combustible timbers, which was calculated to increase the danger of fire to said building; that when the attention of said C. P. Malin was called to the fact that such fire was calculated to cause said building and all the goods to be burned, he stated, 'I don't care, let her go to hell.' That said fire was caused by the reckless act of said C. P. Malin. That by said act the risk of fire to said building and property was greatly increased and the fire mentioned in the petition was caused by the conduct of said C. P. Malin and by the defective condition of the flue herein referred to, by reason whereof defendant says plaintiff is not entitled to recover.

"Further answering the defendant alleges it is provided in said application and policy that the applicant shall take a complete itemized inventory of any stock of goods insured, at least once a year during the life of the policy, and unless such inventory has been taken within twelve months prior to the date of the policy, the same shall be taken within thirty days after the date of the policy or the policy shall be null and void from such date. The applicant shall keep a set of books which shall clearly and plainly present a complete record of all business transacted, including all purchases, sales and shipments both for cash and credit from the date of inventory provided in the first policy. The applicant shall keep such books and inventories and also the last preceding inventory, if such has been taken, securely locked in a fireproof safe at night and at all times when the building mentioned in the policy is not actually open for business, or failing in this, the applicant shall keep such books and inventories in some place not exposed to a fire which would destroy the aforesaid building, and if the affiant, or applicant fails to do so, said policy shall be null and void.

"Defendant alleges that plaintiff failed to comply with said conditions in said policy in this, that it did not take and preserve an inventory or inventories as required by said policy; that it did not keep a set of books, which clearly and plainly presented a record of all business transacted, including all purchases, sales and shipments, both for cash and credit, as required by said policy, and did not keep such books and inventories in a fireproof safe at night, or when said building was not actually open for business, or in some place not exposed to a fire, which would destroy said building. That the fire mentioned in the petition occurred at a time when said store was not open for business and in the nighttime, by reason whereof defendant says plaintiff is not entitled to recover.

"Further answering, defendant alleges that it was the duty of plaintiff to have used every reasonable effort at and during the progress of said fire to have prevented the destruction of said goods from fire and to have saved as many of said goods as possible and to have preserved them after the fire. Defendant alleges that at the time of said fire, plaintiff, by the exercise of reasonable diligence might, and could have saved a large quantity of said goods, but that he recklessly and willfully failed to do so and knowingly permitted other people to enter said store while said fire was in progress and take and remove therefrom a large quantity of said goods and keep and retain same for their own, by reason whereof plaintiff is not entitled to recover.

"Further answering defendant denies each and every allegation, matter, fact and thing in the petition alleged not herein expressly admitted and having fully answered asks to go hence with its costs."

The clause of the answer, in respect to the actions and conduct of C. P. Malin, was, on motion of plaintiff, stricken out, whereupon the defendant amended its answer by adding the following clause:

"Further answering defendant alleges that the fire mentioned in the petition, which damaged said property, was caused by the willful and intentional act of the plaintiff, for the purpose of destroying said property and of defrauding this defendant."

The new matter in the answer was put at issue by a reply.

Plaintiff offered evidence showing a total destruction by fire of the building and all its contents, except about one hundred and fifty dollars worth of goods, on the night of February 20 1902. That the building was worth six hundred dollars, and fixtures and show cases about three hundred and seventy-five dollars and the merchandise in the building at the time of the fire from fifty-two to fifty-three hundred dollars. At the time of the fire plaintiff had other insurance of twenty-five hundred dollars on the house and stock of merchandise which has been paid. In August, 1902, plaintiff took an inventory of his stock,...