Ætna Ins. Co. v. Fitze

• Decision Date: 07 January 1904
• Parties: &#198;TNA INS. CO. v. FITZE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 370

78 S.W. 370

ÆTNA INS. CO. v. FITZE.^*

Court of Civil Appeals of Texas.

January 7, 1904.

Error from District Court, Harris County; W. P. Hamblen, Judge.

Action by W. E. Fitze against the Ætna Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Alexander & Thompson and Ewing & Ring, for plaintiff in error. Hutcheson, Campbell & Hutcheson, for defendant in error.

GARRETT, C. J.

W. E. Fitze brought this action against the Ætna Insurance Company to recover upon three policies of fire insurance amounting to $4,500. The defense was the failure of the assured to comply with certain stipulations of the policies known as the "iron-safe clause," requiring the taking of inventories, the keeping and preservation of a set of books showing a complete record of the business transacted, including purchases and sales and shipments, and the production after the fire of the two last inventories taken and the books as required. There was a jury trial, which resulted in a judgment in favor of the plaintiff for the amount of the policies sued on.

The appeal presents questions upon the admission of evidence, the giving and refusing of charges to the jury, and whether the plaintiff's right to recover had been lost by a breach of the stipulations contained in the "iron-safe clause." The three policies sued on were issued as alleged, and there was a destruction of the goods and building by fire on August 28, 1902, within the periods stipulated therein, and the plaintiff was entitled to a judgment unless there had been a breach of the following conditions of the policy: "The following covenant and warranty is hereby made a part of this policy: (1) The assured 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, one shall be taken in detail within thirty days of issuance of this policy, or this policy shall be null and void from such date. (2) The assured will 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 date of inventory, as provided for in first section of this clause, and also from date of last preceding inventory, if such has been taken, and during the continuance of this policy. (3) The assured 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 this policy is not actually open for business, or failing in this, the assured will keep such books and inventories in some place not exposed to a fire which would destroy the aforesaid building, and unless such books and inventories are produced and delivered to this company for examination, this policy shall be null and void; and no suit or action shall be maintained hereon. It is further agreed that the receipt of such books and inventories and the examination of the same shall not be an admission of any liability under the policy, nor a waiver of any defense to the same." The assured took an inventory of his stock in January, 1902, which, together with the last preceding inventory, taken in January, 1901, and his books, was preserved in the safe, and all were produced and delivered to the company for examination. The assured was a married man, and kept house in the town of Livingston, where he did business. During the years 1901 and 1902 he took from his stock dry goods and groceries which were used for the comfort, convenience, maintenance, and support of his family. No record was kept of the goods thus used, but their value was estimated by the plaintiff at $30 a month. The books did not show the freights paid, and the freight bills were burned in the fire. The freight on the goods were a part of their cost. No account was kept of the cash used by the assured. He did business at only one place, but he had a warehouse near the store, upon which there was separate insurance, and which was not destroyed. The inventory of January, 1902, was $5,915.35. Subsequent purchases amounted to $8,374.83. The credit sales after January 1, 1902, were $6,200.75, and the cash sales were $3,523.75. At the time of the fire there was $514 worth of goods in the warehouse. Each policy contained a "three-fourths loss clause"; that is, that the company should not be liable for exceeding its proportionate part of three-fourths of...