Weinberger v. Insurance Company of North America

• Decision Date: 07 April 1913
• Citation: 156 S.W. 79,170 Mo.App. 266
• Parties: L. M. WEINBERGER, Respondent, v. INSURANCE COMPANY OF NORTH AMERICA, Appellant
• Court: Kansas Court of Appeals

156 S.W. 79

170 Mo.App. 266

L. M. WEINBERGER, Respondent, v. INSURANCE COMPANY OF NORTH AMERICA, Appellant

Court of Appeals of Missouri, Kansas City

April 7, 1913

Appeal from Clay Circuit Court.--Hon. Francis H. Trimble, Judge.

Judgment affirmed.

Fyke & Snider, and Simrall & Simrall for appellant.

(1) It was error to admit testimony of the alleged conversation by Weinberger with defendant's agent as to his intention with respect to leaving plaintiff's books in the store if he walked home. This occurred about a year before the policies sued on were issued. Rodgers v. Ins., 155 Mo.App. 276; Hutchinson v. Ins. Co., 21 Mo. 97; Deitz v. Ins. Co., 38 Mo. 85; Rothschild v. Ins Co., 62 Mo. 356; Carpenter v. Ins. Co., 16 Pet 494; Insurance Co. v. Mowry, 96 U.S. 544; Insurance Co. v. Hurd, 37 Mich. 11; Insurance Co. v. Norwood, 57 Kan. 610; Kimbell v. Ins. Co., 8 Gray, 43; Slobodiski v. Ins. Co., 72 N.W. 483; Turner v. Ins. Co., 16 F. 454; Reduction Co. v Ins. Co., 138 Fed 497; Gray v. Ins. Co., 155 N.Y. 188; Gillum v. Ins. Co., 160 Mo.App. 673. (2) The witnesses, Wise and Searcy, made it clear their testimony and expressions of opinion were not based upon any facts, examination or knowledge of the subject concerning which they were testifying, and that should have been excluded. (3) Defendant's instruction that the iron safe clause was a valid condition and binding upon plaintiff should have been given. Keet-Rountree v. Ins. Co., 100 Mo.App. 504; Crigler v. Ins. Co., 49 Mo.App. 11; Gillum v. Fire Assn., 106 Mo.App. 673. (4) Plaintiff was not entitled to recover under each policy more than that policy's proportionate part of three-fourths of the value of the property destroyed immediately before the fire. Upon this point the court's instructions were wrong and misleading. Surface v. Ins. Co., 157 Mo.App. 570.

Sharp & Sharp for respondent.

JOHNSON, J. Ellison, P. J., concurs; Trimble, J., not sitting, having presided at the trial.

OPINION

JOHNSON, J.

--This is an action on two policies of fire insurance covering a general stock of merchandise owned by plaintiff and contained in a general store operated by her in the town of Vibbard. The stock was completely destroyed by fire during the currency of the policies one of which, issued April 26, 1912, was for $ 1000 and the other issued January 8, 1912, for $ 500.

Each policy contained the agreement "that in the event of loss or damage by fire to the property covered by this policy, this company shall not be liable for an amount greater than three-fourths of the actual cash market value of each item of said property," etc., and further provided: "1st. That the insured will take a complete itemized inventory of stock on hand at least once in each calendar year, and unless such inventory has been taken within twelve calendar months prior to the date of this policy, the same shall be taken in detail within thirty days thereof, or this policy shall be then null and void, and on demand of the insured the unearned premium from that date shall be returned. 2nd. That the insured shall keep a set of books which shall clearly and plainly present a complete record of business transacted, including all purchases, sales and shipments both for cash and credit, from the date of such inventory and during the continuance of this policy. 3rd. The insured will keep such books and inventory and also the last preceding inventory, if such has been taken, securely locked in a fire-proof safe at night, and at all times when the building mentioned in the policy is not actually open for business, or failing in this, the insured will keep such books and inventories in some place not exposed to a fire which would destroy the aforesaid building; and in case of loss, the insured specifically warrants, agrees and covenants to produce such books and inventories for the inspection of this company."

The policy dated April 26, 1912, was a renewal of one for the same amount issued a year before. Plaintiff embarked in business in Vibbard with a stock of goods she had purchased of a merchant in a nearby town. Her husband was her agent and the manager of the business and he increased the stock from time to time by additions of new goods purchased from wholesale merchants. He conducted the business some time without carrying insurance on the stock but in April, 1911, applied to defendant's agent at Excelsior Springs for a policy of insurance. In response to the application the agent inspected the stock the market value of which was about $ 1700, and was informed by the manager that plaintiff intended to carry insurance to the amount of $ 1500 but desired a policy for only $ 1000 at that time and that later she would take an additional policy for $ 500. The manager testified:

"Mr Thomas (defendant's agent) came in the store to inspect it and I told him I wanted $ 1500 but didn't feel like having him write up more than $ 1000, that I couldn't go to the expense of paying the premium then, so I would just take $ 1000 and he told me what the rate would be after going and talking to a gentleman he had with him, and then he told me he would write me the policy, and then asked me whether I had an invoice and kept books, and I told him all the books I kept was a cash account and expense, I was not doing any credit business and my inventory had been taken just a few days prior and he said that was all right; 'where do you keep your books?' I showed him on the counter, I had a little place where I kept my books, and he said, 'Where do you keep them at night?' and I told him I took them home whenever I rode, and when I walked I almost invariably left them there. I usually drove back and forth most of the time. I told him I thought the value of the stock was about $ 1700 at that time. He said I ought to have a safe and keep these things locked up in case of fire and I told him I had no safe and, after telling him that I was carrying them home most of the time, he says that will be all right, not likely if you leave them here any accident would occur at the time. He didn't see the books at that time; he was not asked to inspect or look at them. He told me he would write me the insurance, that he would write a policy for $ 1000 and that whenever I got ready for the further $ 500 to let him know and he would send me another policy for the additional $ 500. When I got ready for the increase I sent him word and he came out and brought the...