Arkansas Mutual Fire Insurance Co. v. Woolverton

• Court: Supreme Court of Arkansas
• Writing for the Court: MCCULLOCH, J.
• Citation: 102 S.W. 226,82 Ark. 476
• Parties: ARKANSAS MUTUAL FIRE INSURANCE COMPANY v. WOOLVERTON
• Decision Date: 29 April 1907

102 S.W. 226

82 Ark. 476

ARKANSAS MUTUAL FIRE INSURANCE COMPANY
v.
WOOLVERTON

Supreme Court of Arkansas

April 29, 1907

Appeal from Conway Circuit Court; Sam W. Simpson, Special Judge; affirmed with modification.

Judgment affirmed.

C. S. Collins, for appellant.

1. The insured is required to take such an inventory as will show the character of the goods, and a mere summary is not sufficient to comply with the clause. 67 S.W. 153. In Texas it has been held that the rule as to substantial compliance does not apply where there has been no compliance, or where there has been a clear case of negligence on the part of the insured. 25 Tex. Civ. App. 518; 77 S.W. 424. See also 19 Tex. Civ. App. 338. The iron-safe clause is a part of the policy; and while it refers only to the inventory, the policy itself stipulates that "he shall produce for examination all books of account, bills, invoices, etc., or certified copies thereof." It was no substantial compliance with this feature of the policy to produce a mere list of invoices of purchases since the date of the inventory. 62 Ark. 49. See also 54 Ark. 23; 53 Ark. 357. The inventory taken from June 1st to 15th, 1905, ought not to have been admitted. A subsequent inventory is not competent evidence. 65 Ark. 248.

2. It was error to allow witnesses to testify to the custom of merchants keeping such stores in keeping their books. It is only where there is some ambiguity that evidence of custom is admissible for the purpose of throwing light upon and removing the ambiguity. 54 Ark. 376; 77 S.W. 424; 71 Miss. 919; 81 S.W. 573; 106 Mo.App. 684; 83 N.W. 81; 20 Ind.App. 333; 26 Ind.App. 472; 169 Ill. 626. See also 180 U.S. 132; 22 So. 104; 21 S.E. 1006; 45 S.W. 61.

3. It was error to exclude testimony tending to show incendiarism, or fear of incendiarism.

E. B. Kinsworthy, W. P. Strait and Chas. C. Reid, for appellee.

1. Appellee has fully complied with the iron-safe clause. There is neither rule nor reason that insured should forfeit his insurance because, after having produced his inventory to the adjuster who examined it, a small part of the inventory, without fault on the part of the insured, has been lost and can not be produced at the trial. It was purely a question for the jury, and the proof was ample to support the verdict. 58 Ark. 565; 53 Ark. 353.

2. The contract is presumed to have been made with reference to the custom of merchants, and is construed most strongly against the insured. 54 Ark. 376.

3. In any event there was a substantial compliance with the requirements of the policy under the statute. Kirby's Digest, § 4375a; 95 S.W. 152; Id. 480; 79 Ark. 160.

4. The act providing for twelve per cent. penalty and attorney's fee but follows the wholesome legislation of other States which has been sustained both in State and Federal courts. 24 L. R. A. 504 and notes in 3 L. R. A. Cases as Authorities, 723; 185 U.S. 325; 76 N.W. 1068.

J. W. & M. House and Ashley Cockrill, amici curiac.

1. It has been held that similar acts do not apply to losses occurring after the passage of the act. 50 Tex. 500; 169 Mo. 12. The act does not apply to losses occurring after the passage of the act under policies in force prior to its passage. Retroactive statutes are not favored. They act prospectively unless the intent is clear to the contrary. 68 Ark. 333; Lewis, Sutherland, Stat. Const. §§ 641-2; 10 Ark. 148; id. 516; 5 Ark. 510; 20 Ark. 293; 14 Ark. 447; 24 Ark. 372; 56 Ark 485; 26 Ark. 127; 25 Ark. 625; 31 Ark. 484. "A statute should not receive such construction as to make it impair existing rights, create new obligations, impose new duties in respect to past transactions, unless such plainly appears to be the intention of the Legislature. In the absence of such plain design, it should be construed as prospective only, although its words are broad enough, in their literal extent, to comprehend existing cases." Lewis, Sutherland on Stat. Const. §§ 643, 646. If the act is given a retrospective effect, it impairs the obligations of a contract. 169 Mo. 12. A similar statute was upheld on the theory that it was imposed as a condition upon which corporations could do business in the State. 185 U.S. 308. But it is clear that such a condition can not be made to apply so as to affect business already done in the State prior to its imposition.

2. In its prospective effect, the act is contrary to the United States Constitution, 14th Amendment. 165 U.S. 150. And violates the following provisions of the State Constitution, §§ 3, 7, 8, 13, and 18, art. 11. See also 49 Ark. 492; 55 Ala. 193; 60 Miss. 641; 70 Mich. 382; 77 Mich. 104; 53 O. St. 12; 48 L. R. A. 340; 64 L. R. A. 325; 68 P. 138.

E. B. Kinsworthy and Reid & Strait, for appellee in reply to amici curiae.

1. The act providing for assessment of penalty and attorney's fee reads "in all cases where loss occurs," etc., plainly including all losses that occur after its passage, no matter when the policy was written. 76 N.W. 1068; 40 Neb. 528.

2. The act is valid. 4 Cooley's Briefs on Law of Ins. 3884; 189 U.S. 301; 187 U.S. 335; 185 U.S. 308; 64 L. R. A. 451; 39 So. 637; 35 So. 171; 80 Mo.App. 75; 74 Ga. 642.

OPINION

[82 Ark. 479] 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 fire-proof safe, and produce the same after the fire, and...