Terry v. National Fire Insurance Company

• Decision Date: 26 June 1923
• Citation: 253 S.W. 16,215 Mo.App. 350
• Parties: ED. TERRY v. NATIONAL FIRE INSURANCE COMPANY
• Court: Missouri Court of Appeals

253 S.W. 16

215 Mo.App. 350

ED. TERRY v. NATIONAL FIRE INSURANCE COMPANY

Court of Appeals of Missouri, Springfield

June 26, 1923

Appeal from the Circuit Court of Dunklin County.--Hon. W. S. C. Walker, Judge.

AFFIRMED.

Judgment affirmed.

Hugh B Pankey and Hal H. McHaney for appellant.

George Smith for respondent.

FARRINGTON J. Cox, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.

The defendant company appeals from a judgment rendered against it in the circuit court on a policy of fire insurance which had been issued to plaintiff on his store building and stock of goods. It appears from the record that the property insured was destroyed by fire, and that the insured failed to comply with what is termed the fire-proof safe clause which was contained in the contract of insurance. The company was notified of the loss and its adjuster came to Kennett, the town in which the plaintiff's store was located, and was informed, according to plaintiff, of his failure to have complied with the fire-proof safe clause.

Plaintiff testified that he and the adjuster, Knapp, went to look at the loss. The following question and answer were made:

"Q. What did you do then?" A. Well, he says, 'it's a complete loss' and I says 'Yes,' and I told him all my books had burned up, and he told me he didn't know how I would go about it without I would go out and get duplicate invoices from all the companies."

A non-waiver agreement appears to have been signed by the plaintiff on June 15, 1921, in which the sole object and intent of the agreement was set out as being to provide for the determination of the amount of loss and damage and investigation of the cause thereof. On June 17, 1921, two days thereafter, this adjuster wrote the plaintiff the following letter:

"St. Louis, Mo., June 17th, 1921."

"Mr. Ed Terry,

"Kennett, Mo.

"Dear sir:

"I have this morning made a detailed report of the circumstances as to your loss claim and take this opportunity to advise you that acting as adjuster for the Great American Fire Insurance Company, also the National Fire Insurance Company, whose policies you hold, I now call your attention to the non-compliance, on your part with the iron safe and inventory clause contained in your policies, and suggest that as soon as you can obtain the required data as to stock purchases and sales I will then be glad to make an appointment with you and again take up the adjustment of your claim.

"Yours very truly,

"CHAS. F. KNAPP, Adjuster."

"Dear Sir:

"In regard to the above will have all O. K. by the 15th of July, 1921.

"ED. TERRY."

We have called attention to the evidence and letter heretofore set out for the purpose of showing that there is evidence in this case from which it can be inferred that the company did not intend to insist upon the right to forfeit on account of the failure to comply with the iron safe clause, and evidence from which could be inferred a waiver of such provision in the policy. It would be useless to go over the cases which sustain our holding in this respect, and a mere citation of authorities will be sufficient to sustain the rule announced.

It has been held in some of the following cases, with which we agree, that the non-waiver agreement does not undertake to cover anything except to determine the cause of the fire and the amount of the loss, and that therefore the non-waiver agreement did in no wise protect the defendant from waiving the breach of the iron safe clause in what it directed the plaintiff to do of June 17th, quoted. [Tinsley v. Aetna Insurance Co., 205 S.W. 78, 80; Rudd v. Fire Insurance Co., 120 Mo.App. 1, 15, 16, 96 S.W. 237; Pace v. American Central Ins. Co., 173 Mo.App. 485, 158 S.W. 892; Keys v. Knights & Ladies of Security, 174 Mo.App. 671, 161 S.W. 345; Travis v. Continental Ins. Co., 179 S.W. 766; Gibson v. Insurance Co., 82 Mo.App. 515.]

This disposes of the principal contention made by appellant in this case.

We may add,...