Fire Ass'n of Philadelphia v. Masterson

• Citation: 83 S.W. 49
• Parties: FIRE ASS'N OF PHILADELPHIA v. MASTERSON et al.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 22 October 1904
• Court: Texas Court of Appeals

83 S.W. 49

FIRE ASS'N OF PHILADELPHIA v. MASTERSON et al.^*

Court of Civil Appeals of Texas.

October 22, 1904.

Appeal from Hill County Court; L. C. Hill, Judge.

Action by W. R. Masterson and others against the Fire Association of Philadelphia. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Alexander & Thompson, A. G. Walker, and S. J. Hogsett, for appellant. Wear, Morrow & Smithdeal, for appellees.

BOOKHOUT, J.

Suit by appellees in the county court of Hill county, Tex., to recover on two insurance policies—one for $500, executed December 16, 1899, and one for $400, executed January 9, 1900. A trial resulted in a verdict and judgment for plaintiffs, and defendant appealed.

Conclusions of Fact.

In December, 1899, W. R. Masterson was the owner of a stock of groceries in the town of Whitney, Hill county, Tex., in the possession of L. E. Miller. It had been agreed that Masterson would furnish the merchandise and that Miller should conduct a grocery business in said town, and that the profits should be divided between them. On the 16th of December, 1899, the Fire Association of Philadelphia, through its agent, A. G. McMahan, executed to L. E. Miller a policy of insurance for five hundred dollars "on his stock of merchandise, consisting of groceries, provisions, produce, tobacco, cigars, and such other merchandise not more hazardous as is usually kept for sale in merchandise stores, while contained in the one-story, metal-roof brick building occupied by the assured as a general store on lot No. 92, block No. 6, Whitney, Texas. Loss, if any, payable to W. R. Masterson as his interest may appear." The policy contained what is known as the "iron-safe clause," wherein the assured covenanted as follows: "(1) The assured will take a complete itemized inventory of stock on hand at least once in each calendar year, and unless such inventory has been taken within twelve calendar months prior to the date of this policy, one shall be taken in detail within thirty days of 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 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 also from date of last preceding inventory, if such has been taken, and during the 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 a fire which would destroy the aforesaid building; and unless such books and inventories are produced and delivered to this company for examination this policy shall be null and void, and no suit or action shall be maintained hereon. It is further agreed that the receipt of such books and inventories and the examination of the same shall not be admission of any liability under the policy, nor a waiver of any defense to the same." At the time the policy was issued the merchandise was being received by Miller in his store at Whitney from Masterson, who resided at and did business at Hillsboro. No inventory had been taken of the goods, but Miller was furnished with invoices, showing in detail the kind and amount of goods and value. These invoices were furnished by Masterson as the goods were delivered. On January 1, 1900, McMahan was informed by Miller that no inventory had been taken of the goods, and he consented and agreed, in effect, that the invoices so furnished by Masterson would be accepted as a compliance of the clause of the policy requiring an inventory to be taken within 30 days if none had been taken within the preceding 12 months. McMahan thereby waived the clause of the policy requiring the taking of an inventory. On January 9, 1900, a similar policy was executed by McMahan, as agent for said association, to Miller, on the same stock of merchandise. The premium called for $9 in the first policy and $7.30 in the second policy, was paid to McMahan, and by him forwarded to the company, and has not been returned to the assured. The assured kept a set of books which clearly showed a complete record of his business, including all purchases for cash and on credit, from date of policies and invoices to time of fire, which occurred on the 4th day of June, 1900, without fault on the part of the assured, and which entirely destroyed the property insured. The cashbook and ledger kept by the assured for the months of December, January, and part of February were destroyed by the fire that destroyed the stock. The footings, however, from his cashbook and ledger so destroyed in February were transferred to a new cashbook and ledger, respectively, and were shown therein. At the time of the trial the following books were introduced in evidence: Cashbook, beginning on December 15th, and running to the time of the fire, in which were kept sales of merchandise for cash, purchases for cash, and collections. Ledger from February 1st to the time of the fire, showing merchandise account and individual accounts on credit, and also showing balances brought forward from Ledger A. Index to ledger, kept from February 1st to the time of the fire. Counter blotter, or charge book, showing credit sales from March 1st to the time of the fire. Counter blotter, or charge book, showing credit sales from ...