Allred v. Hartford Fire Ins. Co.

• Decision Date: 07 October 1896
• Parties: ALLRED et al. v. HARTFORD FIRE INS. CO.
• Court: Texas Court of Appeals

37 S.W. 95

ALLRED et al. v. HARTFORD FIRE INS. CO.

Court of Civil Appeals of Texas.

October 7, 1896.

Appeal from district court, Childress county; G. A. Brown, Judge.

Action by Allred & Co. against the Hartford Fire Insurance Company on a fire insurance policy. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

This is an appeal from a judgment of the district court of Childress county in favor of the insurance company. The suit was brought by appellants on two policies of fire insurance issued by the company to Allred & Co. for $500 each, on their merchandise in their storehouse, described in the policies. The fire occurred on the 2d day of January, 1894. The defendant below set up breach of warranty as stipulated in what is known as the "iron-safe clause" in the policy. There is no statement of facts in the record, and we must look only to the findings of fact as found by the court for the facts of the case, which we adopt as our findings of fact. They are as follows:

"First. The plaintiffs, N. G. Allred and J. A. Greer, were partners under the firm name of Allred & Co. at the date of the issuance of the policies of insurance hereinafter mentioned, and had been such partners for several years prior thereto, and continued to be such partners up to the present time. They were at the date of the issuance of said policies of insurance, and continued to be up to the time of the fire hereinafter mentioned, which occurred on the night of January 2, A. D. 1894, the sole and unconditional owners of the stock of goods mentioned and described in said policies of insurance, and the said J. A. Greer was the managing partner of, and bookkeeper for, said firm; the other partner, N. G. Allred, who was the mother-in-law of said J. A. Greer, having nothing to do with the active management of said business.

"Second. The defendant, by its local agent, J. A. Hudson, on the 24th of October, 1893, and the 15th of November, 1893, executed and delivered to the plaintiffs the two policies of insurance mentioned in and attached as Exhibits A and B to plaintiffs' second amended original petition; and the plaintiffs, at the date of the issuance and delivery of said policies as aforesaid, paid to defendant the premiums mentioned in said policies.

"Third. The said two policies of insurance, which by agreement of counsel for plaintiffs and defendant, and by consent of this court, are to be sent up with the transcript for inspection by the appellate courts in the event this case is appealed, each contained a clause known as the `iron-safe clause,' which is in words and figures as follows, to wit: `Warranty to Keep Books and Inventories, and to Produce Them in Case of Loss. The following covenant and warranty is hereby made a part of this policy: 1st. 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 30 days of issuance of this policy, or this policy shall be null and void from such date, and upon demand of the assured the unearned premium from such date shall be returned. 2d. 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 during the continuance of this policy. 3d. The assured will keep such books and inventory, and also the last preceding inventory, if such has been taken, securely locked in a fireproof 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. In the event of failure to produce such set of books and inventories for the inspection of this company, this policy shall become null and void, and such failure shall constitute a perpetual bar to any recovery thereon.'

"Fourth. The said iron-safe clause is upon the same sheet of paper which contains the description of the property insured, the permit for additional insurance, and the stipulation known as the `three-fourths loss clause,' which provides that the company shall not be liable for an amount greater than three-fourths of the loss, and, in the event of additional insurance, shall not be liable for more than its proportion of three-fourths of said loss, and at the bottom of this sheet of paper in policy No. 386 are the words: `Attached to, and forming part of, policy No. 386, Hartford Fire Insurance Co. [Signed] J. A. Hudson, Agent;' the other policy being the same in this respect, except that the number of the policy is different, being No. 388.

"Fifth. The property insured under said policies is plaintiffs' stock of merchandise, consisting of dry goods, clothing, boots, shoes, hats, notions, and gents' furnishing goods, and such other merchandise, not more hazardous, usual to dry-goods trade, all while contained in a certain store in Childress, Texas, more particularly described in said policies.

"Sixth. Each of said policies permitted fifteen hundred additional concurrent insurance.

"Seventh. At the time of the fire hereinafter mentioned, plaintiffs had, in addition to the said two policies hereinabove mentioned, other insurance on their stock of merchandise to the amount of nine hundred dollars, in the Aetna Insurance Company.

"Eighth. On the night of January 2, A. D. 1894, while said policies of insurance were in force, a fire occurred between the hours of ten and eleven o'clock, which destroyed plaintiffs' said store, and also destroyed a large part of plaintiffs' said stock of merchandise. Said fire occurred at a time when said store was not open for business. It originated in an adjoining building, and did not result from any of the causes which, under the terms and provisions of said policies, would exempt defendant from liability.

"Ninth. Immediately after said fire, plaintiffs gave defendant notice thereof as required by the terms of said policies, and also, within sixty days after said fire, furnished defendant written proofs of loss as required by said policies, which said proofs of loss were received by defendant on March 1, A. D. 1894.

"Tenth. Within a few days after the fire, J. W. Covington, an adjuster representing the defendant, and J. D. Thomas, an adjuster representing the Aetna Insurance Company, came to Childress for the purpose of adjusting plaintiffs' loss; but upon learning from the said J. A. Greer that plaintiffs did not have, and could not produce, the last inventory taken by them of their stock of goods, to wit, an inventory taken in August, 1893, the said J. W. Covington refused to proceed with such adjustment, or make any effort to ascertain the amount of plaintiffs' loss, unless plaintiffs would first enter into an agreement with him in writing to the effect that whatever examination he might make of plaintiffs' books and papers should not be considered an acknowledgment of liability of defendant under its said policies, and should not be considered a...