Fire Ass'n of Philadelphia v. Calhoun
| Decision Date | 03 March 1902 |
| Parties | FIRE ASS'N OF PHILADELPHIA v. CALHOUN |
| Court | Texas Court of Appeals |
Appeal from district court, Shelby county; Tom C. Davis, Judge.
Action by T. G. Calhoun against the Fire Association of Philadelphia. Judgment for plaintiff, and defendant appeals. Affirmed in part, and reversed in part.
Crane & Greer, for appellant. F. P. Brewer, for appellee.
This suit was brought by T. G. Calhoun, appellee, against the appellant, on an insurance policy issued by it to appellee, insuring him against loss by fire, not to exceed $1,275, on certain items of property, to wit, $900 on a stock of merchandise, consisting of drugs, etc.; $200 on a building in which the drugs were situated; $100 on his store and office furniture and fixtures, including an iron safe; $40 on soda fountain and apparatus; and $35 on show cases. The policy contained the three-fourths loss clause and the usual iron-safe clause. Appellant pleaded in bar of the action a breach of certain stipulations in the policy, which we state only in substance: First. That the policy should be void if the interest of the insured in the property be other than unconditional and sole ownership, or the building or ground be not owned by the assured in fee simple, and that the assured owned only an undivided half interest in the house and lot described in the policy. Second. The assured agreed to "take a complete inventory of the 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 the policy, one shall be taken in detail within thirty days, or the policy shall be void"; and it is alleged that this condition was broken. Third. By the policy the assured was required to "keep a full and complete 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, which shall be securely locked in a fireproof safe at night," and that these provisions were not complied with by the assured. The cause was tried before the court without a jury, and resulted in a judgment for appellee for $900.05, from which the insurance company has appealed; and the case is before us on agreed facts, of which the following is a condensed statement:
On the 2d day of March, 1901, the policy of insurance was issued to appellee by appellant as alleged, covering the property and being for the several sums as stated. The building and contents were destroyed by fire on April 15, 1901, and more than 30 days subsequent to the date of the policy. The policy contained the stipulations and warranties as pleaded by appellant. The appellee was not the sole owner of the insured building, but owned only an undivided half interest therein. He had verbally agreed with his co-owner to purchase the other half interest, at a price agreed on; but the agreement was not reduced to writing, no part of the price was paid, the situation of the parties was not changed, and the sale had not been consummated at the date of the trial. By the policy the insured was represented as the sole owner, and the company was not advised of the actual state of the title until after the date of the fire. The insured took no inventory of his stock subsequent to the date of the policy. There was adduced in evidence what purported to be an inventory taken February 12, 1901. It is neither necessary nor practicable to set it out here at length, but as illustrative of the objections urged against it, and as a basis for the contention that it falls short of the requirements of the policy, we give a few of the items or entries:
Swamp fever and Chill C............... $ 10 50
Houston bill ......................... 59 00
Hardware ............................. 25 00
Marble City Drug Co................... 22 00
Bill from Houston Drug Co............. 53 00
Hardware ............................. 100 00
Oil and turpentine in bulk ........... 15 00
Shelf bottles ........................ 45 00
Show case and contents................ 100 00
This was the only inventory of any kind ever taken by assured.
The assured kept a set of books, as required by the policy, and they were all preserved in the iron safe, except the cash book, which was left out of the safe and was destroyed. The fire occurred at night, when the store was closed. On the day before the night of the fire the insured had taken the cash book to his home for the purpose of making some entry therein, and when he came back to the store he left the book in the pocket of his coat, which he left lying on the counter. That afternoon he left the store to go and drive up a calf, and did not go back to the store any more that afternoon. Thereby the cash book was left out of the iron safe...
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