Germania Insurance Co. v. Bromwell

• Decision Date: 08 February 1896
• Parties: GERMANIA INSURANCE COMPANY v. BROMWELL
• Court: Arkansas Supreme Court

34 S.W. 83

62 Ark. 43

GERMANIA INSURANCE COMPANY v. BROMWELL

Supreme Court of Arkansas

February 8, 1896

Appeal from Phillips Circuit Court, GRANT GREEN, JR., Judge.

STATEMENT BY THE COURT.

This was an action upon an insurance policy issued to C. E Bromwell by the Germania Fire Insurance Company. The amount of the policy was $ 500, apportioned as follows: $ 300 on stock of merchandise and $ 200 on furniture, household goods etc. The insurance company admitted its liability for the loss of the furniture and household goods, but denied that it was liable for the merchandise. The policy contained the usual "iron-safe clause," the material portion of which, so far as it is necessary to consider here, is as follows: "The assured under this policy hereby covenants to keep a set of books, showing a complete record of business transacted, including all purchases and sales, together with the last inventory of said business; * * * and in case of loss, whether the store be open for business or not, the assured warrants and covenants to produce such books and inventory, and, in the event of a failure to produce the same, this policy shall be deemed null and void, and no suit or action at law shall be maintained thereon for any such loss." The policy also contained this provision "This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto; and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon and attached hereto," etc.

The plaintiff kept no books, except one showing sales on credit. He had an inventory showing the amount of goods on hand several months before the fire, but he had no record of the cash sales made since the inventory was taken. The plaintiff and his wife, who acted as his agent in attending to the store, testified that Stone, the agent of the insurance company, came and looked at the premises and property before issuing the policy of insurance; that they at that time informed Stone that they could not keep books, and that the business was too small to justify the employment of a bookkeeper: that he thereupon said to them that it was not necessary to keep books. The testimony of Stone, the agent tended to contradict this testimony of the plaintiff and his wife, but it is not necessary to set it out. There was a verdict and judgment in favor of plaintiff.

Judgment reversed and cause remanded.

Jno. J. & E. C. Hornor for appellant.

1. The verdict of a jury upon the preponderance of the evidence will not be set aside, if the instructions are unobjectionable. 25 Ark. 11. But where the verdict is grossly contrary to law, though in accord with the instructions of the court, and totally unsupported by any legal evidence, the judgment will be reversed. 28 Ark. 550. When the verdict is the result of a plain, palpable mistake of the jury, or is attributable to the prejudice, or, may be, of some knowledge on the part of the jury of the circumstances, it will be set aside. 33 Ark. 751. Or where there is no evidence of importance to sustain it, the verdict will be set aside. 40 Ark. 168.

2. The "iron-safe clause" and the keeping a set of books are reasonable conditions, amounting to warranties, and have been given full effect in this state. 58 Ark. 575; 53 id. 353. In the absence of fraud or imposition, statements or waivers by the agent, prior to or at the time of making the contract, cannot be proved. The policy is the evidence of the contract, and appellee cannot be heard to say that the contract was other than that shown by the face of the policy. 50 Ark. 406; 26 P. 718; 58 Ark. 281. No waiver can be shown, except by endorsement on the policy.

3. The evidence wholly fails to show the amount of the goods destroyed by fire. 2 May on Ins. sec. 465; Ib. sec. 460; 12 F. Cases, 700.

Quarles & Moore for appellee.

1. All the instructions asked by appellant were given, and the only question is, was there any evidence to sustain the verdict? 40 Ark. 168; 49 id. 122; 51 id. 467; 58 id. 125. In the cases cited by appellant (58 Ark. 575; 53 id. 353), there was no proof of a waiver, and they do not apply.

2. In this cause the agent admits the waiver. Proof of loss may be waived by parol, though the policy requires a waiver in writing. 32 S.W. 383; 39 Am. Rep. 591; 36 Md. 102; 36 N.E. 990; 53 Ark. 215; 28 S.W. 453. When an agent accepts a premium, having knowledge that a condition of the policy is being violated, the waiver may be shown by parol. 24 S.W. 804; 26 id. 928.

OPINION

RIDDICK, J., (after stating the facts.)

It is admitted by Bromwell, the assured, that he did not comply with the provisions of the "iron-safe clause" in his policy. That clause required the assured to keep a set of books showing the changes taking place from time to time in the stock of goods insured. The reason of it is apparent, for without such books the amount of merchandise on hand at time of the fire could not be told. Similar provisions have been frequently held valid by this court. Southern Ins. Co. v. Parker, 61 Ark. 207, 32 S.W. 507; Western Assurance Co. v. Altheimer, 58 Ark. 565, 25 S.W. 1067; Pelican Ins. Co. v. Wilkerson, 53 Ark. 353, 13 S.W. 1103.

As an excuse for failing to comply with this requirement of his policy, Bromwell testified that before the policy was issued the agent of the company told him that it was unnecessary to keep such books. But it was not competent thus to contradict the material stipulations of the policy by evidence of the parol declarations of the parties made at the time or before the policy was issued. The rule that "parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument" applies to contracts of insurance as well as to other written or printed contracts. Robinson v. Insurance Co., 51 Ark. 441, 11 S.W. 686; Southern Ins. Co. v. White, 58 Ark. 277, 24 S.W. 425; Weston v. Emes, 1 Taunt. 115; Mobile Life Ins. Co. v. Pruett, 74 Ala. 487; Thompson v. Ins. Co., 104 U.S. 252, 26 L.Ed. 765; Insurance Co. v. Mowry, 96 U.S. 544, 24 L.Ed. 674; 1 Wood on Fire Ins. 10; 1 Greenleaf on Ev. sec. 275.

It is contended by counsel for appellee that this provision of the policy was waived by the declaration of the agent, made before the policy was issued, and that the company cannot now assert it, but we think that this contention is not sound. The case of Spratt v. N. O. Ins. Ass., 53 Ark. 215, 13 S.W. 799, cited by counsel, does not support such contention, for there the written application for insurance, upon which the policy was issued, notified the insurer where the books would be kept. That was not an attempt to contradict the terms of the policy by evidence of parol contemporaneous statements, but by a writing which could be treated as a part of the contract. It is true there are many cases which hold that requirements as to notice and proof of loss may be waived. There are also many cases holding that an insurance company may, under certain circumstances, be estopped from taking...