Rosenberg v. General Accident Fire & Life Assur. Co.

• Decision Date: 05 December 1922
• Docket Number: No. 17249.,17249.
• Citation: 246 S.W. 1009
• Court: Missouri Court of Appeals
• Parties: ROSENBERG v. GENERAL ACCIDENT FIRE & ASSUR. CO. Limited.

246 S.W. 1009

ROSENBERG v. GENERAL ACCIDENT FIRE & ASSUR. CO. Limited.

No. 17249.

St. Louis Court of Appeals. Missouri.

December 5, 1922.

Rehearing Denied January 2, 1923.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by A. Rosenberg, doing business as the Supreme Pants Company, against the General Accident Fire & Life Assurance Company, Limited. Judgment for defer dent, and plaintiff appeals. Reversed and remanded.

Curlee & Hay, of St. Louis, for appellant.

Holland, Rutledge & Lashly, M. P. Phillips, and R. L. Ailworth, all of St. Louis, for respondent.

ALLEN; P. J.

This is an action upon a policy of burglary insurance issued to plaintiff on October 20, 1918, purporting to indemnify plaintiff, in the sum of $1,000, against loss by burglary of merchandise from the premises of plaintiff described in the policy. The petition seeks a recovery under the policy for loss by burglary of certain goods, of the alleged value of $1,037.80; judgment being preyed for the amount of the policy, to wit, $1,000, with interest, and also for damages and a reasonable attorney's fee as for defendant's vexatious refusal to pay the loss. "

The answer pleaded in defense a provision of the policy to the effect that the insurer could not be liable thereunder unless books and accounts were kept by the insured in such manner that the exact amount of any such loss might be accurately determined therefrom; setting up that plaintiff violated this provision of the policy, in that plaintiff did not keep books and accounts in such manner that the actual loss, if any, sustained by him on the occasion mentioned in his petition, could be accurately determined.

Plaintiff's evidence went to show a loss by burglary, of the goods mentioned, from his premises, to wit, the "west side" of the fifth floor of the building known as 803 Washington avenue, in the city of St. Louis, and tended to show that entrance thereto was effected through the door of a freight elevator in the rear of plaintiff's premises, and that there were visible marks of violence upon this door. Upon the issue as to whether plaintiff had kept his books and accounts in such manner that the loss sustained by him could he accurately determined therefrom, as required by the policy, there was evidence pro and eon; defendant adducing substantial evidence tending to support this defense. Plaintiff, however, adduced evidence tending to show that, after the, loss was reported by plaintiff to defendant, the latter's adjuster, after having knowledge of the manner in which plaintiff kept his books and accounts, required plaintiff to present his books and accounts and to take, in conjunction with the agents of defendant, a complete inventory of his stock on hand; and that defendant's adjuster thereafter expressed himself as satisfied with the examination, stating that he would recommend that defendant send plaintiff a check, without making any complaint as Id the manner in which the books ere kept. And plaintiff relied upon this testimony to establish a waiver by defendant of the defense predicated upon the provision of the policy in regard to the keeping of books and accounts.

The cause was submitted to the jury upon certain instructions requested by plaintiff and defendant respectively, resulting ha a verdict and judgment for defendant, from which plaintiff prosecutes the appeal before us.

The one error assigned by plaintiff, appellant here, is to the action of the court in giving defendant's instruction No. 9. It is said that this instruction is erroneous, and conflicts with plaintiffs instruction No. 10. Defendant's instruction No. 9 is as follows:

"The court instructs the jury that, under the policy of insurance offered in evidence, the plaintiff was required to keep books and accounts in such manner that the exact amount of loss claimed under said policy might be accurately determined therefrom by defendant.

"And the court instructs the jury that if you believe and find from the evidence that on and before the 16th day of December, 1918, the plaintiff did not keep books and accounts in such manner that the exact amount of loss claimed by plaintiff could be actually determined therefrom, then and in that case the plaintiff is under no circumstances entitled to recover, and you will find your verdict for the defendant.

It is obvious that it was error to give defendant's instruction No. 9. That it is in conflict with plaintiff's instruction No. 10 cannot be doubted. The facts in evidence warranted the submission to the jury of the question of waiver. Tinsley v. Ætna Ins. Co., 199 Mo. App. 393, 205 S. W. 78. And plaintiff's instruction No. 10 authorizes a verdict for plaintiff even though plaintiff did not keep his books and accounts as required by the policy, upon finding that the defendant, by the acts and conduct of its adjuster subsequent to the loss, waived this provision of the policy. Defendant's instruction No. 9, however, expressly tells the jury that, if plaintiff did not keep books and accounts in such manner that the exact amount of the loss claimed by plaintiff could be accurately determined therefrom, then plaintiff is under no circumstances entitled to recover. If plaintiff did not keep his books and accounts as the policy required, then he could not recover unless the defendant had waived this provision of the policy. But since there was evidence tending to show that defendant did waive such provision, which matter of waiver was submitted by plaintiff's instruction No. 10, it was clearly error to give an instruction whereby the jury were unqualifiedly told that, if plaintiff's books and accounts were not kept as the policy required, then the verdict must inevitably be for defendant.

Respondent's learned counsel seek to defend the giving of defendant's instruction No. 9 upon the theory that the two instructions mentioned are in harmony; that when read together plaintiff's instruction No. 10 merely limits the application and effect of defendant's instruction No. 9. But this view is not tenable, and the cases cited by appellant in this connection are not here in point. These two instructions cannot be harmonized, for the reason that defendant's instruction No. 9, in pointedly telling the jury that if the books were not kept as the policy provided then under no circumstances can plaintiff recover, positively...