American Fire Ins. Co. v. Center

• Decision Date: 16 November 1895
• Citation: 33 S.W. 554
• Parties: AMERICAN FIRE INS. CO. et al. v. CENTER (five cases).
• Court: Texas Court of Appeals

33 S.W. 554

AMERICAN FIRE INS. CO. et al. v. CENTER (five cases).

Court of Civil Appeals of Texas.

November 16, 1895.

Appeal from district court, Shackelford county; T. H. Conner, Judge.

Actions by A. J. Center against the American Fire Insurance Company and four others, on their fire policies, consolidated. From judgments for plaintiff in each action, the respective defendants appeal. Reversed.

Leake, Henry & Reeves and Morgan & Thompson, for appellants. L. W. Campbell and J. R. Warren, for appellee.

STEPHENS, J.

A stock of goods belonging to appellee, worth about $15,000, was totally destroyed by fire June 23, 1893, about 4 o'clock at night, in the town of Albany, Tex. It was covered by six policies of insurance, issued by different companies, upon which as many different suits were afterwards instituted, including this one and four others, which were tried together below, without a jury, and have been here submitted together. These cases are thus styled and numbered upon the docket of this court: "Phoenix Assurance Co. v. A. J. Center, No. 2,012; The Firemen's Fund Insurance Co. v. A. J. Center, No. 2,013; Home Insurance Co. v. A. J. Center, No. 2,014; The Pennsylvania Insurance Co. v. A. J. Center, No. 2,016; The Liverpool & London & Globe Insurance Co. v. A. J. Center, No. 2,017."

The main contention of the appellants in all the cases is that the failure of appellee to comply with the iron-safe clause in the several policies was fatal to any recovery. That this clause had not been complied with was clear, but the court below ruled, in accordance with appellee's contention, that it did not amount to a warranty, and that no injury resulted from noncompliance therewith. The further contention is here urged by appellee, in support of the judgments, that this clause of the policy was waived by the conduct of appellants' agents after the fire, but upon this issue the court made no finding. The iron-safe clause was of the same import in each policy, and in the American reads: "The assured under this policy hereby covenants and warrants to keep a set of books, showing a complete record of business transacted, including all purchases and sales both for cash and credit, together with the last inventory of stock insured, and further covenants and warrants to keep such books and inventory securely locked in a fire-proof safe at night and at all times when the store mentioned in the within policy is not actually open for business, or in some secure place not exposed to a fire which would destroy the house where such business is carried on; and, in case of loss, the assured warrants and covenants to produce such books and inventory, and, in the event of a failure to produce the same, this policy shall be deemed null and void, and no suit or action at law shall be maintained thereon for any such loss." In all of the policies except the Home Insurance Company, it was printed upon a slip of paper pasted in the face of the policy at the space usually left blank for the insertion of a description of property insured; and upon the slip of paper so...