Rosenthal-Sloan Millinery Co. v. Hanover Fire Ins. Co.

• Decision Date: 02 March 1920
• Docket Number: No. 15703.,15703.
• Parties: ROSENTHAL-SLOAN MILLINERY CO. v. HANOVER FIRE INS. CO.
• Court: Missouri Court of Appeals

219 S.W. 669

ROSENTHAL-SLOAN MILLINERY CO. v. HANOVER FIRE INS. CO.

No. 15703.

St. Louis Court of Appeals. Missouri.

March 2, 1920.

Rehearing Denied March 30, 1920.

Appeal from Circuit Court, Audrain County; Ernst S. Gantt, Judge.

"Not to be officially published."

Action by Rosenthal-Sloan Millinery Company against the Hanover Fire Insurance Company. Judgment for plaintiff and defendant appeals. Affirmed.

Barger & Hicks, of Chicago, Ill., and Clarence A. Barnes, of St. Louis, for appellant.

R. D. Rodgers, of Mexico, Mo., and Fauntleroy, Cullen & Hay, of St. Louis, for respondent.

ALLEN, J.

This is an action upon two policies of fire insurance issued by the defendant insurance company to one Elsie M. Rinehardt, in the state of Louisiana. By one of these policies, issued on August 8, 1915, the defendant insured said Elsie M. Rinehardt against loss by fire to a certain stock of millinery owned by her in the town or city of West Monroe, La., in the sum of $500, and to certain store and office furniture and fixtures in the sum of $300, for a term of one year from said date. By the other policy, issued on September 3, 1915, the defendant insured said Elsie M. Rinehardt against loss by fire to the same stock of millinery in the further sum of $1,000, for a term of six months from said date. At the time of the issuance of each of these policies, Elsie M. Rinehardt was a resident of said West Monroe, La., where she was engaged in the millinery business; and the insurance was effected through a resident local agent of defendant, by whom the policies were countersigned and delivered to the insured. The policies were in the "standard form,". and each contained a "covenant and warranty" known as the "iron-safe clause," as follows:

"1. The assured will take a complete itemized inventory of stock on hand at least once in each calendar year and, unless such inventory has been taken within twelve months prior to the date of this policy, one shall be taken in detail within 30 days of issuance of this policy, or this policy shall be null and void from such date, and upon demand of the assured the unearned premium from such date shall be returned.

"2. The assured will 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, as provided for in first section of this clause, and during the continuance of this policy.

"3. The assured will keep such books and inventory, 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 this policy is not actually open for business; or, failing in this, the assured will keep such books and inventories in some place not exposed to a fire which would destroy the aforesaid building.

"In the event of failure to produce such set of books and inventories for the inspection of this company, this policy shall become null and void, and such failure shall constitute a perpetual bar to any recovery thereon."

On January 29, 1916, the property was de stroyed by fire. Thereafter the insured as signed her claim for loss and damage under the policies to the plaintiff herein, the Rosenthal-Sloan Millinery Company, a corporation to which she was largely indebted. Proofs of loss were duly filed, and, upon defendant's refusal to pay the claim asserted by plaintiff under the policies, plaintiff instituted this action.

The petition declares upon the policies in separate counts. Each count, after alleging execution by defendant of the policy sued upon in such count, in consideration of certain premiums paid to defendant, alleges a total loss thereunder by fire on said January 29, 1916, notice to defendant thereof and the making of proofs of loss, the performance by the insured of all of the terms and conditions of the policy, a denial of liability by defendant, and the assignment by the insured to defendant of the insured's claim against defendant. Upon the first count, which is upon the policy insuring the stock in the sum of $1.000, judgment is prayed for said sum and interest. On the second count, judgment is prayed for $800 and interest.

It appears that all of the answer filed has not been set out in the record before us, a portion thereof being omitted as no longer pertinent to any matter on appeal. So much of the answer as is brought here, however, occupies about 45 pages of the printed record. It is sufficient to say of it that the only defenses which we need notice consist of alleged violations by plaintiff of the "ironsafe clause," in that the insured, it is alleged, did not take an inventory of the stock on hand as required by said clause, did not keep a set of books such as is required thereby, and that such books as the insured kept were not securely locked in a fireproof safe or in some other place not exposed to fire which would destroy the building containing the stock of millinery, as required by said clause. And defendant pleaded that the contract was one governed by the law of...