Central Manufacturers Mut. Ins. Co. v. Rosenblum
| Decision Date | 03 January 1938 |
| Docket Number | 32314 |
| Citation | 177 So. 909,180 Miss. 485 |
| Court | Mississippi Supreme Court |
| Parties | CENTRAL MANUFACTURERS MUT. INS. CO. v. ROSENBLUM |
1 INSURANCE.
The information required by iron-safe clause of fire policy must be obtainable with reasonable certainty from insured's books unaided by oral testimony, except to explain method of keeping books, and removal by insured of considerable portion of his stock to another store, without entering transfer on books, violates policy provision and avoids policy.
2 INSURANCE.
Where insured's books of account were so irregular contradictory, confusing, and unintelligible that value of insured's stock of goods at time of fire could not be ascertained therefrom with any degree of accuracy, and books of store did not show alleged transfer of goods to it from another store, iron-safe clause of fire policy, requiring insured to keep books which would present complete record of business transacted, was thereby violated and precluded recovery for loss of goods by fire.
3. INSURANCE.
Under iron-safe clause of fire policy, insured must keep such a set of books as will enable an accountant to ascertain therefrom, together with inventory, with reasonable accuracy value of goods on hand at time of fire.
APPEAL from the circuit court of Harrison county HON. W. A. WHITE, Judge.
Suit by James Rosenblum against the Central Manufacturers Mutual Insurance Company. Judgment for plaintiff, defendant appeals, and plaintiff cross-appeals. Reversed and rendered.
Reversed, and judgment here for appellant.
Lotterhos & Travis, of Jackson, and Bidwell Adam, of Gulfport, for appellant.
What is known as the "iron-safe clause," or "record warranty" as it is sometimes called, which requires insured to make an inventory at certain times, to keep books of account, to preserve and keep the same at prescribed times in an iron safe or other fireproof safe, or in some other place secure from the danger of fire, that he shall produce the same for insurer's inspection, or one or more of such things, and that a failure to comply with any or all of such requirements shall render the policy null and void, is not illegal or opposed to public policy, but is a reasonable and valid contract stipulation.
Couch on Insurance, sections 1021, 1022, 1032 and 1032a.
This court has in a number of cases applied the iron-safe clause as a defense according to its terms, and granted judgment for the insurer as a matter of law, where the facts show a breach of the provision.
Scottish Union Ins. Co. v. Warren Gee Lbr. Co., 118 Miss. 740, 80 So. 9; Aetna Ins. Co. v. Mount, 90 Miss. 663, 44 So. 162, 15 L. R. A. (N. S.) 471; Phoenix Ins. Co. v. Dorsey, 102 Miss. 81, 58 So. 778; Penix v. American Central Ins. Co., 106 Miss. 145, 63 So. 346; Ins. Co. v. Bank, 61 Miss. 612, 15 So. 932; Phoenix Ins. Co. of Hartford, v. Bourgeois, 105 Miss. 698, 63 So. 212; Merchants Union Ins. Co. v. Johnson, 135 Miss. 311, 99 So. 899; Lewis v. National Fire Ins. Underwriters, 136 Miss. 576, 101 So. 296; Mitchell v. Ins. Co., 111 Miss. 253, 71 So. 38; National Fire Ins. Co. v. Patridge, 162 Miss. 626, 139 So. 876.
Appellee did not prove his loss from the books.
Phoenix Ins. Co. v. Dorsey, 102 Miss. 81, 58 So. 778.
The appellee's case is bottomed largely upon the Picayune inventory and the Poplarville inventory which he claimed to have taken. In neither instance was the original inventory introduced consisting of the work sheets, but it was testified that this had been destroyed. In both instances he offered an alleged copy which he had made in two books. This evidence is completely dependent upon the parol testimony that these books contained true and exact copies of the inventories. Hence, these books do not constitute proof in and of themselves but depend entirely upon the parol proof above mentioned. We submit that the appellee cannot prove the case by such parol evidence any more than he could offer proof that the merchandise consisted of certain amounts in the absence of any inventory at all.
Phoenix Ins. Co. v. Dorsey, 102 Miss. 81, 58 So. 778; Ins. Co. v. Williams, 200 Ala. 681, 77 So. 159; Ins. Co. v. Miles, 132 So. 27; Morris v. Stuyvesant Ins. Co., 82 So. 586; Pennsylvania Ins. Co. v. Malone, 115 So. 156, 56 A. L. R. 1075; Wright v. Union Ins. Co., 13 F.2d 612; Merchants Ins. Exchange v. Southern Trading Co., 229 S.W. 312.
The alleged Poplarville inventory is insufficient.
Lewis v. Natl. Fire Ins. Underwriters, 136 Miss. 576, 101 So. 296; Day v. Home Ins. Co., 177 Ala. 600, 58 So. 549, 40 L. R. A. (N. S.) 652; Home Ins. Co. v. Bank, 71 Miss. 608, 15 So. 932; Alfred Hiller Co. v. Ins. Co., 125 La. 938, 52 So. 104, 32 L. R. A. (N. S.) 453; Southern Fire Ins. Co. v. Knight, 111 Ga. 622, 36 S.E. 821, 52 L. R. A. 70; Phoenix Ins. Co. v. Sherman, 66 S.E. 81; Shawnee Fire Ins. Co. v. Thompson, 119 P. 985; Goldman v. Aetna Ins. Co., 133 S.E. 741; Hartford Fire Ins. Co. v. Walker, 210 S.W. 682; Gillmer & Co. v. Fire Association, 80 S.W. 283.
The alleged Picayune inventory is not sufficient.
The books maintained by appellee and on which he relied to prove transactions after January 1, 1935, are wholly insufficient.
Failure to keep sufficient books as required by the clause will invalidate the policy and entitle the defendant to a directed verdict.
Aetna Ins. Co. v. Mount, 90 Miss. 663, 44 So. 162, 15 L. R. A. (N. S.) 471; Phoenix Ins. Co. v. Bourgeois, 105 Miss. 698, 63 So. 212; Merchants Union Ins. Co. v. Johnson, 135 Miss. 311, 99 So. 899; Penix v. American Cent. Ins. Co., 106 Miss. 145, 63 So. 346; National Fire Ins. Co. v. Patridge, 162 Miss. 626, 139 So. 876; Ins. Co. v. Williams, 200 Ala. 681, 77 So. 159; Aetna Ins. Co. v. Johnson, 127 Ga. 491, 56 S.E. 643, 9 L. R. A. (N. S.) 667; Commonwealth Underwriters v. Lawrence, 244 S.W. 200; Home Ins. Co. v. Williams, 237 F. 171; Coggins v. Aetna Ins. Co., 144 N.C. 7, 56 S.E. 506, 8 L. R. A. (N. S.) 839; Governale v. Interstate Ins. Co., 141 La. 133, 74 So. 791; Shawnee Fire Ins. Co. v. Thompson, 119 P. 985; Everett v. Trader's Ins. Co., 121 Ga. 228, 48 S.E. 918, 104 Am. St. Rep. 99; Phoenix Ins. Co. v. Sherman, 66 S.E. 81: Fisher v. Sun Ins. Office, 74 W.Va. 694, 83 S.E. 729, L. R. A. 1915C 619; Wright v. Union Ins. Co., 13 F.2d 612; Hanover Fire Ins. Co. v. Wood, 104 So. 224, 39 A. L. R. 1436; Hammond v. Niagara Fire Ins. Co., 92 Kan. 851, 142 P. 936, L. R. A. 1915F 759: Pelican Ins. Co. v. Wilkinson, 13 S.W. 1103; Sun Mutual Ins. Co. v. Dudley, 45 S.W. 539; Scottish Union Ins. Co. v. Weeks, 118 S.W. 1086; Commonwealth Underwriters v. Lawrence, 244 S.W. 200; Crawford v. State, 162 Miss. 158, 138 So. 589.
The appellee breached the iron-safe clause in failing to keep and produce the last preceding inventory.
Lewis v. National Fire Ins. Underwriters, 136 Miss. 576, 101 So. 296; Ins. Co. v. Miles, 132 So. 27; Morris v. Stuyvesant, 82 So. 586; Penn. Ins. Co. v. Malone, 115 So. 156, 56 A. L. R. 1075; Home Ins. Co. v. Bank, 71 Miss. 608, 15 So. 932; Continental Ins. Co. v. Cummings, 81 S.W. 705.
The appellee breached the sole ownership warranty.
Where the insured was not the sole owner, the policy was forfeited.
Bacot v. Phoenix Ins. Co., 96 Miss. 223, 50 So. 729, 25 L. R. A. (N. S.) 1226; Rosenstock v. Miss. Home Ins. Co., 82 Miss. 674, 35 So. 309; Liverpool & London Ins. Co. v. Cochran, 77 Miss. 348, 26 So. 932; Ins. Co. v. Erickson, 50 Fla. 419, 39 So. 495, 2 L. R. A. (N. S.) 512; Tyree v. Virginia Fire Ins. Co., 55 W.Va. 63, 46 S.E. 706, 66 L. R. A. 657.
Viewing now the testimony of appellee in its most favorable light, we are confronted with two contradictory and diametrically opposed statements. In effect appellee states upon oath, "I am the sole owner of the business insured," but upon cross-examination he states in effect, "I am not the sole owner of the business insured." Appellee's testimony on direct examination supports his cause, but his testimony on cross-examination absolutely defeats all right of recovery. Each contradictory and diametrically opposed statement of fact is positive and definite.
The solemn statement in the case at bar by appellee under oath, as a party witness in his own sole cause and against his own interest, is in the nature of a judicial admission and, as such, absolutely binding unless explained or excused.
The contradictions in appellee's testimony being diametrically opposed and incapable of reconciliation, when placed side by side in the judicial mind, nulify and cancel each other, and both therefore fall to the ground.
Appellee, as a matter of fact, did not testify that he purchased his wife's interest in the property insured, but merely that he purchased her corporate stock after the decree dissolving the corporation.
Bracey v. Cristler, 151 Miss. 655, 118 So. 138; Cooper v. State, 130 Miss. 288, 94 So. 161; Dahly v. U.S. 50 F.2d 36; 50 A. L. R. 979, note; Harlow v. Laclair, 50 A. L.R. 17; Steele v. Kansas City Southern R. R. Co., 265 Mo. 97, 175 S.W. 177; Casey v. Northern Pacific Ry. Co., 198 P. 141; Wilson v. Blair, 65 Mont. 155, 211 P. 289, 27 A. L. R. 1235; Southern Bank of the State of Georgia v. Goette, 33 S.E. 974; Fowler v. Pleasant Valley Coal Co., 52 P. 594; Bell v. Johnson, 46 P.2d 886; Roehl v. Ralph, 84 S.W.2d 405; 64 C. J. 360-361, sec. 349; Johnson v. Cincinnati, N. O. & T. P. Ry., 240 S.W. 429; Smith v. Boston Elevated R. Co., 106 C. C. A. 497, 184 F. 387.
Carl Marshall, and Mize, Thompson & Mize, all of Gulfport, and Doty & Johnson, of Biloxi, for appellee.
The case of Sussex Fire Ins. Co. v. Barton, 225 Ala 570, 144 So. 439, defines what is meant by the last preceding inventory in the "iron-safe" clause. The court said: ...
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