Johnson v. Mercantile Town Mutual Fire Insurance

BLAND, P. J. (after stating the facts). Numerous errors intervened on the trial of the cause, but if it was error to refuse defendant’s instruction in the nature of a demurrer to the evidence, it is useless to discuss the other errors. The evidence for the plaintiffs is conclusive that they did not keep the books they agreed, to keep, except a book of credit sales, and they did not keep this book in the iron safe and it was destroyed by fire. There is no evidence tending to prove a waiver of the stipulations set .forth in defendant’s answer. In regard to what is commonly called “the iron-safe clause” in policies of insurance, in 13 Am. and Eng. Ency. of Law (2 Ed.), p. 355, it is said: “It has now become well settled by adjudications which have multiplied rapidly during the few years of its existence, that this clause is not only reasonable but even desirable and that in ordinary cases it will be enforced.” In Crigler v. Ins. Co., 49 Mo. App. 11, the Kansas City Court of Appeals, and in Keet-Rountree Dry Goods Co. v. Ins. Co., 100 Mo. App. 504, 74 S. W. 469, this court held that compliance on the part of the insured with the iron-safe clause was a condition precedent to his right of recovery, that, in effect, the warranty was [87] an affirmative one and if breached avoided the contract of insurance. An affirmative warranty consists of representations in the policy of facts then existing. As the iron-safe clause consists of representations of things to be done in the future, it seems to us the warranty is not an affirmative one but a promissory one, and a failure to substantially comply with it does not avoid the contract of insurance, but defeats the right of recovery. This is the view taken by the United States Circuit Court of Appeals, in Western Assurance Co. v. Reeding, 68 Fed. 708, and approved by Joyce on Insurance at section 2068, vol. 3, and we think the great weight of authority coincides with this view. [Virginia F. & M. Ins. Co. v. Morgan, 90 Va. 290; The Niagara Fire Ins. Co. v. Forehand, 169 Ill. 626; Southern Ins. Co. v. Parker, 61 Ark. 207; Scottish Union and National Ins. Co. v. Stubbs, 98 Ga. 754; Roberts, Willis & Taylor Co. v. Sun Mutual Ins. Co., 48 S. W. (Texas) 559; Sowers v. Mutual Fire Ins. Co., 113 Iowa 551.] Numerous other cases of the same tenor and effect are collected in a footnote on pages 710, 711, 712 and 713, 51 L. R. A. The petition alleges, that the' plaintiffs duly performed all the conditions required of them by the terms of said policy. The answer denies this allegation and pleads, specially, a breach of the promissory warranty to keep books, inventories, etc. Thus the specific issue of the breach of the warranty to keep books, inventories, etc., was raised by the pleadings, and the burden was on the plaintiff to show affirmatively a substantial compliance with said promise. The evidence is all one way that they utterly failed to keep and perform this promise, literally or substantially, and there being no evidence whatever that defendant waived its performance the defendant’s peremptory instruction should have been given. The- judgment is therefore reversed and the cause remanded with directions to the trial court to enter [88] judgment for plaintiff for five hundred dollars, the amount of the insurance on the house, with six per cent interest thereon per annum from the date the same should have been paid under the terms of the policy. Nortoni, J., concurs; Goode, J., absent.