Shapiro v. American Surety Co.

• Decision Date: 05 February 1924
• Docket Number: No. 18426.,18426.
• Citation: 259 S.W. 502
• Parties: SHAPIRO v. AMERICAN SURETY CO. OF NEW YORK.
• Court: Missouri Court of Appeals

259 S.W. 502

SHAPIRO v. AMERICAN SURETY CO. OF NEW YORK.

No. 18426.

St. Louis Court of Appeals, Missouri.

February 5, 1924.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be officially published."

Action by Harry Shapiro against the American Surety Company of New York. Judgment for plaintiff, and defendant appeals. Affirmed.

George E. Egger, of St. Louis, and Frank Dietrich and R. E. Kleinschmidt, both of Hillsboro, for appellant.

P. S. Terry, of Festus, for respondent.

SUTTON, C.

This is an action upon an insurance policy by which the defendant insured plaintiff in the sum of $1,000 against loss of money, securities, and merchandise by robbery. The policy contained, among other exemptions, the following:

"The company shall not be liable for loss * * * unless books and accounts are kept by the assured and the company can accurately determine the loss therefrom."

The evidence shows that, while the policy was in force, the plaintiff was robbed of $375 near his place of business in the city of St. Louis. The jury returned a verdict for plaintiff for $375 as his actual loss, and for $100 as attorney fee and $37.50 as damages, for vexatious refusal to pay the loss, making an aggregate sum of $512.50. The court gave judgment accordingly, and the defendant appeals.

The defendant demurred generally to the evidence in the court below, and the overruling of its demurrer is assigned as error here. Defendant insists that its demurrer to the evidence should have been sustained, for the reason that there was a total failure of proof that books and accounts were kept by the insured, as required by the exemption clause of the policy above quoted. This insistence cannot be sustained for two reasons: (1) The plaintiff testified that he kept an account book, showing how much money, and the denominations of the money, he lost by the robbery, and that he showed the book to an officer of defendant after he was robbed; and (2) the failure to keep books and accounts, as required by the policy, was not pleaded by the defendant. Exemptions, exceptions, warranties, conditions, and other provisions undertaking to cut down, limit, or defeat liability, or to forfeit the insurance, must be pleaded, if relied upon as defenses by the insurer. Fager v. Commercial Union Assurance Co., 189 Mo. App. 464, loc. cit. 469, 176 S. W. 1064; Tinsley v. Ætna Ins. Co., 199 Mo. App. 693, loc. cit. 709, 205 S. W. 78; Baker & Lesley v. Phoenix Ins. Co. (Mo. App.) 230 S. W. 336; Young v. Pennsylvania Fire Ins. Co., 269 Mo. 1, loc. cit. 12, 187 S. W. 856; Johnson v. Fire Ins. Co., 120 Mo. App. 80, loc. cit. 87, 96 S. W. 697; King v. Ins. Co., 133 Mo. App. 612, loc. cit. 619, 114 S. W. 63; Bathe v. Metropolitan Life Ins. Co., 152 Mo. App. 87, loc. cit. 93, 132 S. W. 743; Stephens v. Fire Ass'n of Philadelphia, 139 Mo. App. 369, loc. cit. 375, 123 S. W. 63; Roedel v. Ins. Co., 176 Mo. App. 584, loc. cit. 590, 160 S. W. 44; Reddick v. Accident & Casualty Co., 180 Mo. App. 277, loc. cit. 287, 165 S. W. 354; Keeton v. National Union, 178 Mo. App. 301, 165 S. W. 1107.

Defendant also complains that the trial court submitted to the jury the issue of defendant's vexatious refusal to pay the loss, and urges that such submission was not justified by the evidence. We are relieved from examining the question thus raised, for the reason that the defendant offered no special demurrer upon this issue, and requested no instruction withdrawing the issue from the consideration of the jury, but, without making any such offer or request, at its own instance, procured the court to give to the jury two instructions upon this issue. One of these instructions directed the jury that, if they believed that the conduct of the plaintiff at the time and shortly after the alleged robbery was such as to lead a reasonable person acting in good faith to believe that plaintiff was attempting to practice a fraud on defendant in the presentation of his claim, and that defendant did so believe, then that they should find for defendant upon the issue of vexatious refusal to pay. The other instruction told the jury that, before they were authorized to find for the plaintiff upon the issue of vexatious refusal to pay, they must believe the refusal of defendant to pay plaintiff the amount of his claim was willful and without reasonable excuse, and that the question of willfulness was not to be determined by the appearance of facts and circumstances at the time of the trial, but by the appearance before the trial, as judged by a prudent and reasonable man, seeking to ascertain the facts as duty would require. By procuring these instructions to be given to the jury, without first offering a special demurrer upon the issue of vexatious refusal to pay the loss, or requesting an instruction withdrawing that issue from the jury, the defendant is clearly estopped to now insist that the court erred in submitting such issue to the jury. Torrance v. Pryor (Mo. Sup.) 210 S. W. 430, loc. cit. 432; Ramsey v. Mississippi River & Bonne Terre Ry. (Mo. App.) 253 S. W. 1079, loc. cit. 1082; Leahy v. Winkel (Mo. App.) 251 S. W. 483, loc. cit. 487; Davison v. Hines (Mo. Sup.) 246 S. W. 302; Peycke Bros. Commission Co. v. Lehigh Valley R. Co. (Mo. App.) 224 S....