The Shawnee Fire-Insurance Company v. Knerr

• Citation: 72 Kan. 385,83 P. 611
• Decision Date: 09 December 1905
• Docket Number: 14,331
• Parties: THE SHAWNEE FIRE-INSURANCE COMPANY v. E. I. KNERR
• Court: United States State Supreme Court of Kansas

83 P. 611

72 Kan. 385

THE SHAWNEE FIRE-INSURANCE COMPANY v. E. I. KNERR

No. 14,331

Supreme Court of Kansas

December 9, 1905

Decided. July, 1905.

Error from Dickinson district court; R. L. KING, judge.

Judgment reversed and remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. FIRE-INSURANCE--"Iron-safe" Clause--Condition Precedent. The "iron-safe" clause in the policy under consideration is a condition the performance of which is a prerequisite to the right of the insured to maintain an action on the policy.

2. FIRE-INSURANCE--Investigation of Loss--Non-waiver Agreement--Condition Not Waived. The acts of an adjuster while investigating under a non-waiver agreement the cause of a fire and the amount of loss sustained cannot be construed into a waiver by the company of its right to insist that the policy was void because of the non-compliance with the "iron-safe" clause contained therein.

3. FIRE-INSURANCE--Performance of Conditions -- Pleading and Proof. In an action to recover on an insurance policy the plaintiff must plead and prove the performance of all conditions precedent, or a waiver by the insurer. Where performance is pleaded a general denial puts in issue the performance of all such conditions.

Mulvane & Gault, and G. W. Hurd, for plaintiff in error.

Edward C. Little, for defendant in error.

GREENE J., All the Justices concurring.

OPINION

GREENE, J.

On the 7th day of October, 1903, Mrs. E. I. Knerr, being the owner of a general stock of merchandise contained in a building situated in Manchester, Kan., procured a policy of insurance in the Shawnee Fire-insurance Company, of Topeka, Kan., on the stock in the sum of $ 2000. On the night of February 2, or the morning of February 3, 1904, the stock was totally destroyed by fire. The company paid the plaintiff $ 1500 by way of settlement. This action was brought to recover the remaining $ 500 of the policy, on the ground that the settlement was obtained by duress. Of the many questions argued by the plaintiff in error, the one that is decisive of the case in this court arises under the following condition of the policy:

"The assured under this policy hereby covenants and agrees to keep a set of books showing a complete record of business transacted, including all purchases and sales, both for cash and credit, together with the last inventory of said business; and further covenants and agrees to keep such books and inventory securely locked in a fire-proof safe at night, and at all times when the store mentioned in the within policy is not actually opened for business, or in some secure place not exposed to a fire which would destroy the house where such business is carried on; and, in case of loss, the assured agrees and covenants to produce such books and inventory, and in the event of a failure to produce the same this policy shall be deemed null and void, and no suit or action at law shall be maintained thereon for any such loss."

The insured neglected to keep a safe. She permitted the books used in conducting the business to remain in the store where the insured stock was kept at night, where they could not escape destruction if the stock and building burned. The building and stock were destroyed by fire on February 2 or 3, 1904. The ledger, the cash-book, the day-book of credit sales, the bank-book, the invoices--in fact, all of the books pertaining to the business, except a book called a "ledgerette," which is said to have contained the credit accounts--were in a desk in the building and were destroyed.

The company contends that by the failure of the insured to comply with this condition of the contract of insurance she forfeited her right to recover anything under the policy. This provision was inserted in the policy so that if a fire should occur the company would have some data from which it might approximate the actual value of the stock destroyed. It is not an unreasonable precaution; it is one with which the insured might very easily have complied. In any event, the parties making the contract agreed that it should be performed by the insured, and since it is a part of the contract it cannot be ignored or arbitrarily set aside. It is generally held that neglect on the part of the insured substantially to comply with a clause in an insurance policy to keep the books used in conducting the insured's business in an iron safe, or in some place where they will not be destroyed in case the...