82 Mo. App. 515 | Mo. Ct. App. | 1900
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This action is based ón a policy of fire insurance issued to plaintiff, insuring his building for $300, bis saloon fixtures for $300 and his stock of liquors, cigars and tobacco for $200, all in the town of Buckner. In the trial court -the finding was for plaintiff, save as to the insurance on the building. Defendant appeals.
The policy contained the following provision: “In ease the assured does not take an inventory of the.stock hereby covered at least once -a year during the life of this policy, and in the event that no inventory, of such stock has been made within one year prior to the date of this policy, then the assured agrees to make such inventory immediately upon the acceptance of this policy, and shall keep books of account, correctly detailing all purchases and sales of said stock, and shall keep said inventory -and books securely locked in a
It was conceded that plaintiff did not keep an iron safe; that he did not keep his books, accounts and inventories in any place away from the building; and that he did not keep any books of account correctly setting forth all purchases and sales of stock. The evidence shows that the only thing he had or kept was a small book which he carried-in his pocket, and in which he put down, at night, the amount of cash he took in that „ day. And the evidence shows that after the fire defendant’s 'agent demanded that he produce his books. In short, the case shows that there was no compliance with the clause of the policy above quoted and plaintiff relies, in support of the judgment, on a waiver by defendant’s agents.
I. The evidence in the case fails to disclose anything tending to show a waiver.' The defendant’s agent, who took the insurance wrote the application and read it over to plaintiff. It was written in plaintiff’s saloon, a room about 16 by 30 feet in size, and plaintiff testified that the agent could plainly see -that there was no iron safe in it. If we concede that he could, it would not be evidence that plaintiff would not procure one in order to comply with his agreement. The contract was not that he already had a fire-proof safe in which to keep his books, but that he would (that is, after the taking effect of the policy) keep one. But plaintiff further testified that the agent was frequently, 'after that, in his saloon and could have observed that he did not have a sáfe. So, if we grant this too, still there is nothing to' show that he was not keeping his books, etc., at some other saf'e place
But it is urged that forfeitures are not favored and that the policy, while providing that books 'and inventories shall be kept in a fire-proof safe, or in a safe place in another building, did not provide that it should be void if this was not done; that the only provision avoiding the policy was in ease of loss and plaintiff failed to produce such books and inventories after a demand for them. Passing by all questions of warranty and all representations in application, 'and granting plaintiff properly 'construes the policy, the testimony of plaintiff himself shows that the books were demanded. The adjusting agent called for the books and plaintiff told him he had no books, that the only book he kept was the little book which he kept in his pocket in which he put down the amount of cash resulting from his daily sales. The agent told him he could not do anything for him; that his'book amounted to nothing.
We are cited to the cases of Parsons v. Ins. Co., 132 Mo. 583, and McCollum v. Ins. Co., 61 Mo. App. 352, as supporting plaintiff’s view of waiver. Neither of these has any application to this case, for the reason that this case lacks the essential facts which controlled those. In those cases the insurance companies, after a knowledge of the forfeiture, by their conduct induced and led the assured into further labor, trouble and expenseunder the idea that they would then be paid for the loss shown. Here, there was nothing whatever of that kind. The assured was not led into any expense, and nothing was done save to say to him, when it was discovered he had not complied with the policy, that he could do nothing for him. It is true that the agent asked for the policy and upon
“I went over and he says I think you and me can settle in a few minutes. I says Mr. Bressler, I hope we can; I don’t want 'anything only what is just right. I went over and he says, I can not do anything this evening. I am looking for some important letters on the night train. He says I will see you in the morning. He says me and you can settle in a few minutes. A few minutes before the nine o’clock train came in the next morning, he came over and he told me, he says Gibson, I can not do anything for you.”
Here nothing was done by the agent to change plaintiff’s position the slightest. He sent for his policy, but that was only doing what his duty was. It was his duty to have the policy at hand, and it is not pretended that this act aided the waiver contended for.
Not having kept any books and inventory in a safe place as agreed; and not having kept any books 'ait all of the kind agreed upon, and no waiver having been shown, it f ollows that plaintiff has no case 'as to the stock insured at $200.
“No company shall take a risk on any property in this state at a ratio greater than three-fourths of the value of the property insured, and when taken its value shall not be questioned in any proceeding.”
We held in Warren v. Ins. Co., 72 Mo. App. 188, that the terms of the act of 1895, page 195, in reference to furnishing blanks for proofs of loss, were general and included town mutual companies; and that the act of 1895, page 200, exempting mutual insurance companies from the operation of general insurance laws, did not exempt them from furnishing blank proofs of loss, since the act- requiring all companies to furnish such proofs was general enough to cover all companies; and the exempting act only exempted them from the provisions of the general statute of 1889. So we hold in this case that the
It is propei’ to add -that the effect of the latter act was not argued or brought to the attention of the court in Warren v. Ins. Co., supra.
"We will therefore affirm the judgment if plaintiff will, within ten days, enter a remittitur of $200, and proportionate interest included in the verdict, this being the insurance on the stock. Otherwise, the judgment will be reversed and the cause remanded.