Arkansas Mut. Fire Ins. Co. v. Woolverton

• Decision Date: 29 April 1907
• Citation: 102 S.W. 226
• Parties: ARKANSAS MUT. FIRE INS. CO. v. WOOLVERTON.
• Court: Arkansas Supreme Court

Page 226

102 S.W. 226

ARKANSAS MUT. FIRE INS. CO. v. WOOLVERTON.

Supreme Court of Arkansas.

April 29, 1907.

Appeal from Circuit Court, Conway County; Samuel W. Simpson, Special Judge.

Action by C. D. Woolverton against the Arkansas Mutual Fire Insurance Company on a fire policy. From a judgment in favor of plaintiff, defendant appeals. Modified.

C. S. Collins, for appellant. J. W. & M. House, E. B. Kinsworthy, Ashley Cockrill, W. P. Strait, and Chas. C. Reid, for appellee.

McCULLOCH, J.

This is an action on a fire insurance policy dated October 31, 1904, in the sum of $1,500, issued to the plaintiff on his stock of merchandise, store furniture, and fixtures, alleged to be of the value of $5,710.50, and which was destroyed by fire. The defendant pleaded as a defense an alleged violation by plaintiff of the iron-safe clause of the policy, whereby he agreed to keep his books and inventory, as well as the last inventory taken preceding the issuance of the policy, in a fireproof safe, and produce the same after the fire and deliver them to the company for examination. The alleged breach of the conditions of the policy consisted of a failure to preserve the last preceding inventory, taken on February 1, 1904. An inventory was duly taken in June, 1905, which was but a short time before the fire, and it was produced at the trial of the cause; but the inventory taken February 1, 1904, was not produced, and the plaintiff was permitted to testify, over defendant's objection, concerning the amount of stock shown by said inventory, and to read a summary of the inventory which had been entered on his ledger. He testified that the itemized inventory was taken down by himself and clerks on slips or sheets of paper in a tablet, and a general summary thereof was copied on the ledger; that these slips or sheets of paper were kept in the safe until after the fire, when they were taken out and delivered to the adjuster of the company, except two or three sheets, which had been misplaced when the adjuster got there; that the adjuster examined the inventory and made no objection to the loss of the two or three sheets, but, on the contrary, said that if the company was liable at all it was liable for the full amount of the policy; that afterwards the inventory was lost.

It is contended that the whole of the inventory must have been preserved in order to comply with the policy, that it must be produced at the trial, and that oral testimony of its contents, or of the summary thereof on the ledger, was not admissible. The evidence establishes, we think, compliance with the terms of the policy with respect to the taking and preservation of the inventory. It was properly itemized, and was preserved until after the fire, and exhibited to the adjuster, except two or three sheets, which, it appears, did not materially affect the amount of the inventory. Our statute provides that substantial compliance upon the part of the assured with the terms, conditions, and warranties of fire insurance policies on personal property shall be deemed to be sufficient. Act March 29, 1899; Kirby's Dig. § 4375a. The taking of the inventory and preservation of all of it except an immaterial part was certainly a substantial compliance with the requirements of the policy in that respect. The summary entered upon the ledger was not of itself a sufficient compliance with the terms of the policy, and counsel for appellee do not claim it to be such; but in the absence of the inventory itself, and where it has been shown to have been lost after the fire and exhibition to the company's adjuster, the summary could be used by a witness to refresh his memory in testifying concerning the amount of stock shown by the inventory. Phœnix Ins. Co. v. Public Parks Amusement Co., 63 Ark. 187, 37 S. W. 959; Greenwich Ins. Co. v. State, 74 Ark. 72, 84 S. W. 1025. The policy does not require the preservation of the inventory until the trial. It only requires preservation until after the fire, so that the inventory can be exhibited to and examined by the company's representative.

There is no...