T. S. Hollenbeck & Co. v. Mercantile Town Mut. Fire Ins. Co.

• Decision Date: 06 October 1908
• Citation: 113 S.W. 217,133 Mo. App. 57
• Parties: T. S. HOLLENBECK & CO. v. MERCANTILE TOWN MUT. FIRE INS. CO.
• Court: Missouri Court of Appeals

113 S.W. 217

133 Mo. App. 57

T. S. HOLLENBECK & CO. v. MERCANTILE TOWN MUT. FIRE INS. CO.

St. Louis Court of Appeals. Missouri.

October 6, 1908.

1. INSURANCE (§ 335)—FIRE INSURANCE—INVOICES—FAILURE TO KEEP—EFFECT.

A fire policy covering merchandise was voided for insured's failure to keep a cash account of goods sold, an invoice of goods purchased, and an inventory, as required by the policy.

2. INSURANCE (§ 283) — FIRE INSURANCE — MORTGAGES—FAILURE TO DISCLOSE—EFFECT.

A fire policy is avoided by insured's failure to disclose a mortgage in his application, when asked whether any existed.

3. INSURANCE (§ 379) — APPLICATION — ANSWERS BY INSURER'S AGENT—EFFECT.

Insured is not bound by the answers to the questions propounded in the application, unless when he signed it he knew of the questions and answers as written by insurer's agent.

4. INSURANCE (§ 668) — APPLICATION — CONTENTS—INSURED'S KNOWLEDGE—JURY QUESTION.

In an action on a fire policy, held, under the evidence, a jury question whether, when insured signed the application, he knew the nature of the questions and answers written therein by insurer's agent.

5. INSURANCE (§ 559) — PROOFS OF LOSS — WAIVER—DENIAL OF LIABILITY.

By denying any liability, insurer waives formal proof of loss, as required by the policy.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by T. S. Hollenbeck & Co. against the Mercantile Town Mutual Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Partly reversed and partly affirmed.

Brown & Hubbard and Barclay & Fauntleroy, for appellant. H. C. Riley, Jr., and Ward & Collins, for respondent.

BLAND, P. J.

Defendant company by its policy, dated May 30, 1904, insured plaintiff against loss by fire as follows: Six hundred dollars on his one-story frame building, situated on lot 11, block 18, in the town of Portageville, New Madrid county, Mo.; $400 on his stock of merchandise, consisting principally of drugs and medicines, located in said building. In December, 1904, and during the life of the policy, the building was totally destroyed by fire, as was the greater part of the merchandise covered by the policy. The action is on the policy, to recover the fire loss. Plaintiff recovered the full amount of the insurance. The policy contained the following provisions: "Book and Inventory Clause.—It is expressly stipulated and made a condition of this contract that: First. The assured will take an itemized inventory of stock hereby insured at least once in each calendar year, and unless such inventory shall have been taken within twelve (12) calendar months prior to the date of this policy, the same shall be taken in detail within thirty (30) days after said date, or this policy shall be null and void from and after the expiration of said thirty (30) days, and upon demand of the assured the unearned premium for the unexpired time of this policy shall be returned. Second. The assured will keep a set of books, which shall clearly and plainly present in detail a complete record of the business transacted, including all purchases, sales and shipments of said stock, both for cash and credit, from the date of the inventory provided for in the first section of this clause, and during the continuance of this policy. Third. The assured shall keep such books and inventory, and also the last preceding inventory, securly locked in fireproof safe at night, and at all times when the building mentioned in this policy, or the portion thereof containing the stock described therein, is not actually open for business; or, failing in this, the assured will keep such books and inventories, at night and at all such times, in some place not exposed to a fire which would ignite or destroy the aforesaid building; and, in case of loss, the assured specifically warrants, agrees and covenants to produce such books and inventories for the inspection of said company. Fourth. In the event of failure on the part of assured to keep and produce such books and inventories for the inspection of said company, this entire policy shall become null and void, and such failure shall constitute a perpetual bar to any recovery thereon."

1. Plaintiff's evidence shows affirmatively that he failed to comply with the iron-safe clause of the policy, in this, that he kept no cash account of goods sold, no invoice of goods purchased, nor did he have on hand any invoice taken before or after the policy was issued. This was a failure to comply with the substantial provisions of the iron-safe clause, and takes the case out of the ruling of Malin v. Ins. Co., 105 Mo. App. 625, 80 S. W. 56, cited and relied on by plaintiff, and brings it within the ruling of Gillum & Co. v. Fire Ass'n, 106 Mo. App. 673, 80 S. W. 283, and Johnson v. Fire Ins. Co., 120 Mo. App. 80, 96 S. W. 697. The policy was voided as to the merchandise, for failure to comply with the provisions of the iron-safe clause (Johnson v. Fire Ins. Co., supra; Gillum & Co. v. Fire Ass'n, 106 Mo. App. loc. cit. 679, 80 S. W. 283; Bruer v. Kansas Mut. Life Ins. Co., 100 Mo. App. 540, 75 S. W. 380; Gibson v. Mo. Town. Mut. Ins. Co., 82 Mo. App. 515; Crigler v. Ins. Co., 49 Mo. App. 11), and the court should have given defendant's instruction to the effect that plaintiff could not recover for the loss of the merchandise.

2. The following printed interrogatories appear in the application for insurance: "(1) Are you the sole and absolute owner of the property to be insured?" The answer in writing is "Yes." "(2) Is the property mortgaged or otherwise incumbered?" The answer in writing is "No." The policy contained the following clause: "This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or...