Meyer Dairy Equipment Co. v. Connecticut Fire Ins. Co.

• Decision Date: 21 September 1926
• Docket Number: No. 19478.,19478.
• Citation: 287 S.W. 663
• Parties: MEYER DAIRY EQUIPMENT CO. v. CONNECTICUT FIRE INS. CO.
• Court: Missouri Court of Appeals

287 S.W. 663

MEYER DAIRY EQUIPMENT CO. v. CONNECTICUT FIRE INS. CO.

No. 19478.

St. Louis Court of Appeals. Missouri.

September 21, 1926.

Rehearing Denied November 16, 1926.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by the Meyer Dairy Equipment Company against the Connecticut Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.

A. B. Lansing and Henry S. Cooke, both of St. Louis, for appellant.

Stern & Burnett, of St. Louis, for respondent.

SUTTON, C.

This is an action on a policy of insurance issued by defendant to plaintiff on November 15, 1922, for a term commencing on that day and ending on November" 15, 1923, for the sum of $250, covering on plaintiff's Ford automobile. The provisions of the policy, so far as material here, are as follows:

"In consideration of the premium hereinafter mentioned the Connecticut Fire Insurance Company, Hartford, Conn., does insure the assured named herein, and legal representatives, for the term herein specified, to an amount not exceeding the amount of insurance herein specified, against direct loss or damages, from the perils insured against, to the body, machinery and equipment of the automobile described herein while within the limits of the United States (exclusive of Alaska. the Hawaiian and Philippine Islands and Porto Rico) and Canada, including while in building, on road, on railroad car or other conveyance, ferry or inland steamer, or coastwise steamer between ports within said limits. The following are the perils insured against:

"(a) Fire, arising from any cause whatsoever, and lightning;

"(b) While being transported in any conveyance by land or water, the stranding, sinking, collision, burning or derailment of such conveyance, including general average and salvage charges for which the assured is legally liable.

"(c) Theft, robbery or pilferage, excepting by any person or persons in the assured's household or in the assured's service or employment, whether the theft, robbery or pilferage occur during the hours of such service or employment or not, and excepting also the wrongful conversion, embezzlement, or secretion by a mortgagor or vendee in possession under mortgage, conditional sale or lease agreement, and excepting in any case, other than in case of the theft of the entire automobile described herein, the theft, robbery or pilferage of tools and repair equipment.

"Name of Assured: Meyer Dairy Equipment Company.

"The term of this policy begins at noon on the 15th day of November, 1922, and ends at noon on the 15th day of November, 1923, standard time.

"Amount of insurance, two hundred and fifty dollars.

"Premium consideration, seventeen and 43/100 dollars.

"The following is the description of the automobile: 1921 model Ford coupe.

"This policy is made and accepted subject to the provisions, exclusions, conditions, and warranties set forth herein or indorsed hereon.

"In consideration of a reduction in premium, it is warranted by the assured that the automobile insured under this policy will be continuously equipped with a locking device known as Perry (approved by the Underwriters' Laboratories, Inc.. and bearing their label). The assured undertakes during the currency of this policy to use all diligence and care in maintaining the efficiency of said locking device and in locking the automobile when leaving the same unattended."

The petition sets up the execution and delivery of the policy to plaintiff by defendant, and charges that on the 23d day of May, 1923, the automobile insured was stolen from plaintiff, and that on said date said automobile was of the reasonable market value in excess of $250, and that the loss to plaintiff by reason of said theft was in excess of that sum. The answer admits the execution and delivery of the policy as alleged in the petition, and denies each and every other allegation contained therein, and charges by way of affirmative defense that amongst the terms and conditions of said policy was a condition that the plaintiff was to equip the automobile insured under said policy with a device designed to prevent the theft of said automobile, and that the plaintiff warranted that it would at all times use due diligence to keep said locking device locked, and that in violation of said condition and warranty said plaintiff omitted to use due diligence to keep said rocking device locked, and that plaintiff's loss, if any, was the direct result of the violation of the condition and warranty of the policy of insurance sued on, and that by reason of said violation, which directly caused plaintiff to sustain whatever loss plaintiff complains of, plaintiff is not entitled to recover under said policy. The reply charges that after the theft of the automobile mentioned in plaintiff's petition, the defendant investigated said loss and learned that at the time that said automobile was stolen the locking device on said car was not locked, and that thereupon defendant denied liability on its policy of Insurance on the ground that plaintiff had not used due diligence to keep said locking device locked; that defendant failed and omitted to return the unearned premium, and by reason of said failure and omission to return the unearned premium defendant has waived its right and is estopped to set up that plaintiff violated its warranty in failing to use due diligence to keep the locking device on said automobile locked.

The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff, and the defendant appeals.

Upon this appeal the defendant assigns as error the refusal of the court to give its instruction in the nature of a demurrer to the evidence.

It is conceded that the automobile insured was continuously equipped with a locking device, which was maintained in a suitable condition of efficiency, and was usually kept locked when the automobile was left unattended, during the currency of the policy, but that the device was left unlocked and the automobile unattended at the time it was stolen, and that thereby the plaintiff breached the condition or, promissory warranty of the policy that plaintiff should use all diligence and care in locking the automobile when leaving the same unattended, and that such breach defeats recovery under the policy, unless the defendant waived the breach or is estopped to assert it as a defense. It is conceded that the defendant learned of the breach shortly after the loss occurred and denied liability on that ground, but failed to return or offer to return the premium, or any part of it, received upon the issuance of the policy. The plaintiff contends that defendant by its failure to...