Brown v. Palatine Ins. Co.
| Decision Date | 25 May 1896 |
| Citation | 35 S.W. 1060 |
| Parties | BROWN v. PALATINE INS. CO. |
| Court | Texas Supreme Court |
Action by N. Brown against the Palatine Insurance Company to recover on a fire insurance policy. There was judgment for plaintiff, which was reversed by the court of civil appeals (34 S. W. 462), and plaintiff brings error. Reversed.
M. B. Templeton and Crawford & Crawford, for plaintiff in error. Morgan & Thompson, for defendant in error.
The Palatine Insurance Company, of Manchester, England, issued to N. Brown, on his stock of goods, an insurance policy for the sum of $1,500, which contained the following condition: "The insured, under this policy, covenants and warrants to keep a set of books showing a record of business transacted, including all purchases and sales both for cash and credit, together with the last inventory of the stock insured, and further covenants and warrants to keep such books and inventory securely locked in a fireproof 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 such loss." The defendant insurance company pleaded that plaintiff had failed to keep and produce the set of books required by the terms of the policy, whereby the policy was forfeited. Plaintiff kept and produced a set of books which were in compliance with the requirements of the policy, except that the sales for the day on which the fire occurred were entered by the clerks on small books known as "blotters," as usual, which it was customary to transfer to books of more substantial character, but the blotters for that day were left out of the safe, and destroyed by the fire, and the sales had not been entered upon the journal. The books showed the sales on credit for the three preceding days to have been, respectively, $65, $70, and $76. The fire occurred without fault on the part of plaintiff, and he had on hand at the time goods to an amount sufficient to entitle him to recover the amount of the judgment of the district court, if the policy was not forfeited. Trial was had below before the judge, who found that the books kept by plaintiff complied with the requirements of the policy, and gave judgment for plaintiff for $1,353.12, which was reversed by the court of civil appeals, and judgment rendered in favor of defendant.
In the construction of policies of insurance, the same rules of law will be applied as in the construction of contracts made between individuals under like conditions, and no greater strictness is required in the performance of the one than the other. Hoose v. Insurance Co., 84 Mich. 317, 47 N. W. 587; Insurance Co. v. Cherry, 84 Va. 75, 3 S. E. 876. It is often said that a warranty in an insurance policy must be strictly complied with, and sometimes it is said that it must be literally fulfilled; but this is no more true of that character of contract than of others, and means no more than that when the language is clear it must be performed as expressed, which is equally true of all kinds of written undertakings. The same is true of such instrument when the language calls for construction; for when the meaning and intent are arrived at, whether it be explicitly expressed in the words, or derived from them and attending circumstances, that intention must govern, in enforcing the contract. Goddard v. Insurance Co., 67 Tex. 71, 1 S. W. 906. It is, however, unnecessary for us to discuss the question as to whether the compliance must be strict, or may be substantial; for in the case now before us the real question is, what did the parties intend to prescribe as the measure of duty on the part of the insured in keeping the books? Did the insured undertake to keep a set of books absolutely correct, by the entry of every business transaction, and of the sale of each article of merchandise? It is not so written in the policy, and can only be claimed as the intention of the...
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