The German Insurance Company v. Allen

• Decision Date: 07 July 1904
• Docket Number: 13,762
• Citation: 69 Kan. 729,77 P. 529
• Parties: THE GERMAN INSURANCE COMPANY v. MRS. J. H. ALLEN
• Court: Kansas Supreme Court

77 P. 529

69 Kan. 729

THE GERMAN INSURANCE COMPANY v. MRS. J. H. ALLEN

No. 13,762

Supreme Court of Kansas

July 7, 1904

Decided July, 1904.

Error from Coffey district court; DENNIS MADDEN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INSURANCE POLICY -- "Iron-safe Clause" Waived by Agent. A provision in a fire-insurance policy that a merchant will keep books showing the purchase and sale of goods for cash, credit, and exchange, and produce the same with the last inventory, in case of a loss, may be waived and when an agent who issued a policy was informed, after the contract was made, of the system of bookkeeping used by the insured, which did not include a cash-book, and then stated that the system was all right and would be satisfactory, the insurance company cannot, after a loss, defend on the ground that a cash-book was not kept; the requirement will be deemed to have been waived.

2. INSURANCE POLICY -- Right of Forfeiture Waived by Adjuster. Where the adjuster of a fire-insurance company, after a loss, learns of the non-compliance by the insured with a provision of the policy with regard to keeping books, and, instead of declaring a forfeiture therefor, negotiates with the insured for the making of other and better proofs, extends the time to make proofs, and requires the insured, at some trouble and expense, to submit to an examination under oath concerning the fire and the property destroyed, the company will be deemed to have waived the right of forfeiture.

Barnett & Barnett, and Joe Rolston, for plaintiff in error.

W. W. Brown, and Kellogg & Madden, for defendant in error.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.:

This was an action brought by Mrs. J. H. Allen against the German Insurance Company, of Freeport, Ill., upon a contract insuring a store-building and a stock of merchandise therein against loss or damage by fire. The policy of insurance was issued on September 7, 1901, and the building and stock of goods were wholly destroyed by fire on September 24, 1901. Payment of the loss was refused by the insurance company because of alleged non-performance of the conditions of the policy by the insured. The contract contained what is commonly spoken of as the "iron-safe clause," by which the insured agreed to keep a set of books showing a record of the business transacted, including all purchases and sales, for credit, cash, and exchange, as well as the last inventory of the stock taken within twelve months prior to the happening of the loss, and to keep books and inventory securely locked in a fire-proof safe at night and when the store was not actually open for business; and, also, the further provision that such books and inventory would be produced in case of any loss, and in the event of a failure to produce the same the policy should be deemed to be null and void. On the part of the company it was contended that the insured had failed to keep the books showing her cash sales, or to produce any such books after the loss occurred. The insured contended that she had substantially performed the conditions and requirements of the policy, and that if she had failed to any extent it had been waived by the company and its agents. Among other questions that of waiver was...