Farmers' Mut. Fire Ass'n v. Steed

• Decision Date: 18 June 1917
• Docket Number: (No. 8108.)
• Parties: FARMERS' MUT. FIRE ASS'N. v. STEED.
• Court: Georgia Court of Appeals

20 Ga.App. 329

93 S.E. 75

FARMERS' MUT. FIRE ASS'N.

v.STEED.

(No. 8108.)

Court of Appeals of Georgia, Division No. 2.

June 18, 1917.

(Syllabus by the Court.)

Error from Superior Court, Murray County; A. W. Fite, Judge.

Action by W. H. Steed against the Farmers' Mutual Fire Association. There was judgment for plaintiff, and defendant brings error. Reversed.

Maddox, McCamy & Shumate, of Dalton, for plaintiff in error.

H. H. Anderson, of Chatsworth, and W. E. Mann, of Dalton, for defendant in error.

BLOODWORTH, J. [1] 1. The trial judge unequivocally approved the brief of evidence in the following language: "The within brief of evidence approved, the same being correct." The fact that the court added that "counsel for plaintiff [in] error objects, but it is ordered that copy of policy be incorporated in brief of evidence, " does not in any manner qualify its approval; and inasmuch as the material portions of the contract of insurance, including the "mercantile stock form, " were set out in the approved brief of evidence, the last clause of the order approving the brief of evidence may be treated as surplusage. Besides, it does not appear that any point as to the approval of the brief of evidence was raised and insisted upon before the trial judge. Acts 1911, p. 150 (3); Park's Ann. Code, § 6090 (a); Collins v. State, 12 Ga. App. 635 (1), 636, 77 S. E. 1079; Odom v. Coley, 11 Ga. App. 490, 75 S. E. 822 (1); Lewis v. Phillips-Boyd Pub. Co., 18 Ga. App. 181, 89 S. E. 177 (1). The authorities cited by the movant are clearly distinguished by their facts from the case at bar, and, the brief of evidence being sufficiently approved, the motion to dismiss the writ of error is denied.

2. The defendant insurance company pleaded that the contract was void by reason of the plaintiff's failure to comply with the stipulations of the "iron-safe clause, " especially as to making an inventory and as to keeping a set of books.

(a) Plaintiff in his amended petition alleged that the "mercantile form, " containing the "iron-safe clause, " was not attached to and did not form a part of the original contract. However, on cross-examination he admitted facts which, in connection with the other evidence, demand a finding for the insurance company upon this point. The record shows that the plaintiff introduced policy No. 389 and "mercantile stock form No. 389, " which had been detached from the policy as shown by the evidence, and which was attached to the policy as shown by the evidence when delivered to plaintiff. The "iron-safe clause" of said form is as follows:

"The following covenant and warranty is hereby made a part of this policy:

"(1) The assured will take a complete itemized inventory of stock on hand at least once in each calendar year, and unless such an inventory has been taken within twelve calendar months prior to the date of this policy one shall be taken in detail in thirty days of the issuance of this policy or this policy shall be null and void from such date, and upon demand of the assured the unearned premium from such date, shall be returned.

"(2) The assured will keep a set of books, which shall clearly and plainly present a complete record of the business transacted, including all purchases, sales and shipments, both for cash and credit from date of inventory as provided for in first section of this clause, and continuance of this policy.

"(3) The assured will keep such books and inventory, and also the last preceding inventory, if such has been taken, securely locked in a fireproof safe at night and at all times when the building mentioned in this policy is not actually open for business, or failing in this the assured will keep such books and inventories in some place not exposed to fire which would destroy the aforesaid building. In the event of the failure to produce such set of books and inventories for the inspection of the company, this policy will become null and void, and such failure shall constitute a perpetual bar to any recovery thereon."

(b) It appears undisputed in the evidence that the insured failed to comply with the terms of the policy, in not taking an inventory, and in not keeping a set of books by which his stock account or his cash sales could be determined, or his cash sales separated from his credit sales, and that such records as had been kept, except his ledger, were destroyed by the fire.

(c) Beyond the conclusion of the plaintiff that his stock of goods was worth a. certain amount named by him, there is no evidence from which the insurance company or the jury could have arrived at the value of the stock.

While forfeitures are not favored in this state, the facts of this case illustrate most strongly the wisdom of, and the necessity for, compliance with the stipulations in the "iron-safe clause" for the protection of both parties. The plaintiff having breached the contract in the essential particulars named above, the policy is void and unenforceable. The case is squarely within the rulings of the Supreme Court in Everett-Ridley-Ragan Co. v. Traders' Insurance Co., 121 Ga. 228, 48 S. E. 918, 104 Am. St. Rep. 99; Liverpool Insurance Co. v. Ellington, 94 Ga. 785, 791, 21 S. E. 1006; Ætna Insurance Co. v. Johnson, 127 Ga. 491, 56 S. E. 643, 9 L. R. A. (N. S.) 667, 9 Ann. Cas. 461; Hester v. Scottish Union & N. Ins. Co., 115 Ga. 454, 41 S. E. 552; Southern Fire Ins. Co. v. Knight, 111 Ga. 022, 634, 36 S. E. 821, 52 L. R. A. 70, 78 Am. St. Rep. 216; Buchman v. Insurance Co. of North America, 134 Ga. 506, 68 S. E. 71; Johnson v. Sun Fire Ins. Co., 3 Ga. App. 430, 433, 434, 60 S. E. 118; Finleyson Bros. v. Liverpool, etc., Insurance Co., 10 Ga. App. 51, 84 S. E. 311.

3. The contention of the plaintiff...