Keet-Rountree Dry Goods Co. v. Mercantile Town Mutual Insurance

REYBURN, J. 1. The chief defense interposed by defendant’s answer and relied on to defeat plaintiff’s demand was, that no inventory was exhibited, although demand therefor was made, nor did the assured keep a set of books presenting a complete record of the business transacted by him. The assured appears to-have had a safe as part of. the equipment of his place of business and he candidly acknowledged that although the fire occurred at an' hour in the early morning when the building could not have been open for the transaction of business, his books, at least in part, and his inventory were left exposed and consumed in the destruction of his stock of goods and storehouse containing them. Under the view we take and the conclusions arrived at, it will bé unnecessary to determine whether those books surviving the fire constituted a substantial compliance with the provisions of the contract governing such books of account, as it might fairly be claimed that from them might be and was ascertained with reasonable certainty the volume of merchandise in stock at the time of its destruction, and thereby shown to be largely in excess of the amount of insurance thereon, but it is conceded that while an inventory was drawn off by the insured during the month of November preceding the loss, and thereby meeting the requirement of the policy respecting its preparation, it was suffered to be so endangered by failure to deposit it in the safe, while the place of business was closed, that it met the fate of the building and other contents. It is not controverted that at least to the extent of the inventory, there was a breach of the warranties of the policies which avoided and invalidated the contracts [512] ■of insurance unless waived by appellant. Provisions of the character herein sought to be invoked are incorporated in the contract of insurance for the protection of the insuring company and the insurer may waive such conditions for its own benefit and repeatedly renounce further stipulations of non-waiver. Barnard v. Ins. Co., 38 Mo. App. 113; Thompson v. Ins. Co., 169 Mo. 12; Springfield Steam Laundry Co. v. Ins. Co., 151 Mo. 90. The existence of a waiver is a mixed question of law and fact; whether there is any evidence to establish the allegation of a waiver is the province of the court to determine, but the weight or sufficiency of such evidence is a question for the jury; and where there is any evidence from which a waiver of a condition may be inferred, such question should be submitted to the jury. Haggard v. Ins. Co., 53 Mo. App. 98, and eases cited therein; Summers v. Ins. Co., 45 Mo. App. 46; McCollum v. Ins. Co., 61 Mo. App. 352. But to warrant the submission of such issue, there must be facts in evidence from which the jury may reasonably infer a waiver on the part of the insurer. The evidence herein fails to disclose any conduct of the defendant from which a waiver of the condition of the policy requiring the safe-keeping and production of an inventory can be fairly drawn. Under the stipulations of the policies, the assured agreed and warranted that he would not only take an itemized inventory of his stock and keep a complete set of books, but would cause such books and the last inventory to be securely locked in a fireproof safe at night and during non-business hours, or in lieu of so doing would keep such books and inventory in some place not exposed to destruction by a fire burning his store and stock of merchandise, but he obligated himself to protect these commercial records in ,one manner or the other as he chose. [513] The facts relied on by plaintiff to constitute a waiver by the defendant are the investigation, if not adjustment of the loss by the defendant, and the letter of its secretary in reply to the notice of assignment of the policies and demand for their settlement given and made by counsel. Under usual conditions an adjustment of loss implies a liability therefor and is a circumstance from which an intention to mate payment under a policy may fairly be deduced. But an adjustment is not conclusive proof of liability, and in the present case the inquiry made into the extent of the loss was made upon the distinct reservation or suspension of the question of obligation under the policies. To guard against any claim of waiver by its action after the fire as a condition precedent to the investigation of the loss and -a consideration therefor,, the so-called non-waiver agreement was entered into by plaintiff’s assignor and the agent of defendant, by which it was clearly, stipulated and understood that the investigation- of the fire or the ascertainment of the extent of the loss should be without prejudice to either party, and that the rights of both were thereby preserved unimpaired ■ and undisturbed. The purpose of this instrument was to fix and counteract beyond misapprehension or dispute, the consequences and effect of the investigation of the fire and its results and to anticipate and exclude the inferences usually to be drawn from such examination if conducted unconditionally and without such mutual agreement. This compact was competent, valid and supported by the consideration of the covenants interchanged and the examination forthwith entered upon by the insurer’s agent, which was made under its terms and in reliance upon it. Sun Ins. Co. v. Dudley, 45 S. W. 539. [514] Nor does the letter in evidence tend to establish any waiver, for read in the light of the fact that a partial liability was recognized, measured by the amount of the insurance on the building, it is but a declination of payment of the full amount of the insurance under both policies. No element of estoppel can arise because the action of defendant’s agents, relied on as constituting a waiver, was after the loss had-occurred when the attitude of the assured respecting the cause of forfeiture could not be remedied or disturbed, and he did not in anywise change his condition or relation to the claims or forego any action on his part under the policies to establish or mature them. Gibson v. Ins. Co., 82 Mo. App. 515. The policies of insurance contained the conditions upon which the defendant assumed the obligation of indemnifying the insured against fire loss, to which terms he assented, and the defendant had full right to appeal to the contracts and insist upon the substantial compliance by the assured with their provisions and to take advantage of and enforce all forfeiture incurred by their violation. The guarding of the inventory against the peril of its destruction by fire during non-business hours and its production on call by defendant therefor after a loss, were conditions precedent to right of recovery on the policies. As the defendant acknowledged its liability for the amount of the insurance on the storehouse, the judgment will be affirmed for $350, with interest from date of suit, and reversed as to remainder of the judgment on the first count of the petition and upon the second count. Bland, P. J., and Goode, J., concur.