Georgia Home Ins. Co. v. McKinley

• Decision Date: 09 May 1896
• Citation: 37 S.W. 606
• Parties: GEORGIA HOME INS. CO. v. McKINLEY.
• Court: Texas Court of Appeals

37 S.W. 606

GEORGIA HOME INS. CO. v. McKINLEY.

Court of Civil Appeals of Texas.

May 9, 1896.

Error from district court, Hopkins county; E. W. Terhune, Judge.

Action by William G. McKinley against the Georgia Home Insurance Company on a policy. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

Morgan & Thompson, for plaintiff in error. Templeton & Crosby, for defendant in error.

FINLEY, J.

This suit was instituted by William G. McKinley against the Georgia Home Insurance Company upon a fire insurance policy to recover $1,300, the amount of the insurance provided in the policy. The defenses urged were: First, breach of the iron-safe clause; second, fraud and false swearing; and, third, arson. Trial was had before the court without a jury, resulting in a judgment in favor of plaintiff for the sum of $1,275.73. From this judgment the insurance company has prosecuted its writ of error. There is no statement of facts contained in the record, and the case is asked to be reviewed upon the conclusions of fact and law prepared and filed by the trial judge. The conclusions of the trial court are as follows:

"Conclusions of Fact.

"(1) On November 1, 1893, the defendant, an incorporated insurance company, through its agents in Hopkins county, issued its insurance policy upon its printed form, which begins as follows: `No. 196,061. By this policy of insurance the Georgia Home Insurance Company, * * * in consideration of $24.05, and the agreements and conditions herein contained, insures W. G. McKinley to the amount of $1,300.00, as per printed form hereto attached, and forming part of this policy [here comes a blank space about three inches wide], against all such immediate loss or damage sustained by the assured as may occur by fire to the property above specified, not exceeding the sum insured.' The policy terminated November 1, 1894. Following the above are printed stipulations as to the manner by which the loss is to be ascertained, and a provision making the policy due sixty days after proofs of loss are received. Then, immediately following, come 33 lines of printed matter containing conditions not involved in this suit.

"(2) There is a printed slip, some 3½ inches wide, with its left edge pasted to the left side of the policy, immediately below the language `as per printed form hereto attached and forming part hereof,' which covers the blank space above referred to. This slip contains a description of the property insured, and amount of insurance as set out in the petition, and, briefly, is as follows: `$450 on merchandise, $300 on furniture, fixtures, and safe, $50 on awning, $500 on building; total insurance permitted, $2,600. This slip to be attached to and made a part of policy No. 196,061 of the Georgia Home Insurance Co.' Signed by the agents.

"(3) Below, and independent of, the above slip, is a second one, pasted to the policy in the same manner as the first, at the left hand of lines 3 to 10, inclusive, of the conditions. This slip is the three-fourths loss clause, and provided the company shall only be liable for three-fourths of the loss sustained, and, in case of other insurance, but for its proportionate share of the three-fourths.

"(4) Below, and independent of, these slips, is a third slip, pasted to the policy as the others, and pasted at its left-hand end to the left edge of the policy opposite lines 11 to 30 of the conditions of the policy. So far as material, it is as follows: `The assured hereby covenants and agrees to keep a set of books showing a complete record of business transacted, including all purchases and sales, both for cash and credit; and to take an itemized inventory at least once every year; and further covenants and agrees to keep such books and inventory securely locked in a fireproof safe at night, * * * or in some secure place not exposed to a fire which would destroy the house. * * * And in case of loss the assured agrees and covenants to produce such books and inventory, and, in case of failure to produce same, this policy shall be deemed null and void. * * * Attached to and made a part of policy No. 196,061 of the Georgia Home Insurance Co.' Plaintiff never saw this clause, and never knew it was on the policy until after the fire. * * *

"(5) The assured also had a policy on the same property in the Palatine Ins. Co., which contained the two-thirds loss clause, and was for amounts as follows: $500 on house, $275 on merchandise, $300 on furniture, fixtures, and safe, $25 on awnings.

"(6) On the night of August 23, 1894, the entire property which then belonged to plaintiff, without fault on plaintiff's part, was wholly destroyed by fire; the cash value of the property destroyed being as follows: The house, worth $1,300; the merchandise, worth $1,000; the furniture, fixtures, and safe, worth $686.40; the awnings, worth $72.50. Proofs of loss as required by the policy were duly made out by plaintiff and delivered to the company on October 2, 1894."

"(8) About January 1, 1893, plaintiff took an itemized inventory of the entire stock of goods he had, which complied with the terms of the policy. He kept this in a fireproof safe in the store house,...