Greenwich Insurance Company v. State

Citation84 S.W. 1025,74 Ark. 72
PartiesGREENWICH INSURANCE COMPANY v. STATE
Decision Date28 January 1905
CourtArkansas Supreme Court

[Copyrighted Material Omitted]

Appeal from Jefferson Circuit Court ANTONIO B. GRACE, Judge.

Affirmed.

This suit was brought by the State for the use of Frank J. Murray against the Greenwich Insurance Company and its sureties to recover on two policies of insurance for the sum of $ 1,000 each, issued on the following property: "Stock of lumber, laths and shingles, dressed and undressed, while contained in the one-story, shingle-roof frame shed, situated on block 71, and on their open yards situated in blocks 71 and 72, Pine Bluff, Arkansas." The complaint alleges that on December 25, 1900, while said policies were in force all the property situated in the above frame shed was totally destroyed by fire, and that in the open yards was partially destroyed. That the value of said property so destroyed was at least $ 6,000, and that plaintiff had other insurance aggregating $ 3,000, in addition to the policies issued by defendant insurance company.

The insurance company answered, denying that it ever issued any policy covering the property alleged to have been damaged or destroyed by fire, that plaintiff had fully complied with the conditions of the said policies, including notice of loss, or that the insurance company had refused to accept said notice and that it was indebted to appellee in the sum demanded; and alleging that Murray had failed to file proofs of loss and to keep a set of books, as required under the terms of the said policies.

The policy was of the standard form, including both the ordinary iron-safe clause and the 85 per cent. co-insurance and value clause, which was in the following language:

"It is hereby expressly stipulated that if at the time of fire the whole amount of insurance on the property covered by any item of this policy shall be less than 85 per cent. of the actual cash value thereof, this company shall, in case of loss or damage, be liable for only such portion of such loss or damage as the amount insured under said item shall bear to 85 per cent. of the actual cash value of the property covered by such item; provided, that in case the whole amount of insurance on the property covered by any item shall exceed 85 per cent. of the actual cash value of the same, this company shall not, under said item, be liable to pay more than its pro rata share of 85 per cent. of the actual cash value of such property; and, should the whole insurance on any item at the time of fire exceed the said 85 per cent., a pro rata return of premium on such excess of insurance from the time of the fire to the expiration of this policy shall be made upon the surrender of this policy."

Plaintiff testified that at the time the first policy in defendant's company was taken out there was only one shingle-roof shed in his lumber yard, situated in block 71, in Pine Bluff, the rest of the yard being open; that subsequently, but before the second policy was taken out, he built and used as part of the yard a box shed with asbestos fire-proof roofing; that afterwards he took out the second policy in defendant's company; that defendant's agent inspected the yard after the second shed was built, and knew it was used for storing lumber; that the loss under the asbestos shed was $ 5,436.42, and outside this shed $ 425.10; that after the fire he notified defendant's agent; that the adjuster came, and plaintiff presented him a list, but he refused to furnish plaintiff a blank for proof of loss, and denied liability; that plaintiff kept a set of books, as required, in an iron safe after night.

At defendant's request, the court instructed the jury as follows:

"The court instructs the jury that the policy sued on herein contains the following covenants:

"'The assured shall take a complete itemized inventory of stock on hand at least once in each calendar year; and unless such inventory has been taken of the property covered by this policy within twelve calendar months prior to the date thereof, one shall be taken in detail within thirty days after the date thereof.

"'And the assured shall keep a set of books which shall clearly and plainly represent a complete record of business transacted, including all purchases, sales and shipments, both for cash and credit, from the date of the inventory; and upon the plaintiff's failure to keep and perform all of the said covenants, then the said policy shall be null and void.'

"So, therefore, if you believe from the evidence that the said plaintiff has failed, refused or neglected to comply substantially with either or all of the said covenants, then the plaintiff cannot recover in any sum whatever herein, and you will find for defendant."

At plaintiff's request the court charged as follows:

"1. The jury are instructed that, although the notice of loss must be given by plaintiff to defendant insurance company as required, yet the defendant insurance company may waive any delinquency on the part of the insured as to the form of notice in this respect, and such a waiver may be inferred from any conduct on the part of the insurers clearly inconsistent with any intention to insist upon the failure by the insured to give such notice in the form provided in the policy.

"3. Where it is denied by the defendant insurance company that the property shown by the evidence to have been destroyed by fire was covered by the policy, and the jury find from the evidence that there was no written application for the policy or policies under which the defendant insurance company makes such denial; if you further find from the evidence that the agent of the insurance company has given a description of the property from his knowledge obtained by personal examination of the property for the purpose of effecting the insurance thereon, which description he, the said agent, inserted in the policy, then said defendant insurance company cannot take advantage of any inaccuracy in the language of the description of said property so inserted in the policy to avoid payment for the loss of property as aforesaid, unless there is evidence of an attempt on the part of the plaintiff to mislead said defendant, or its agent, in this respect, or the conduct of the plaintiff was such as to mislead said defendant or agent. And knowledge of the insurance company or agent of inaccuracy or incompleteness in the description of the property at the time when the insurance is effected, if such is shown by the testimony, and you so find, will estop the defendant from setting up any such inaccuracy or incompleteness of description in defense in this case.

"4. The jury are instructed that no alteration made on the premises where the property insured by the plaintiff was situate would avoid his policy, nor can his recovery be defeated by means of alterations, unless the effect of the same was such as to increase the risk or hazard of loss by fire to the property insured. If the jury find from the evidence that the defendant insurance company made the policy sued upon, and the property insured was destroyed by fire, as stated in the complaint, and plaintiff complied with the agreements and conditions in the policy to be complied with on his part, or that the same were waived by defendant's agents, they will find for the plaintiff."

There was a verdict for plaintiff in the sum of $ 2,015.66. Defendant appealed.

All other facts necessary to its understanding are stated in the opinion of the court.

Judgment affirmed.

Austin & Danaher, for appellant.

The policy sued on contained what is known as the co-insurance clause, which will be enforced. 53 Ark. 353; 58 Ark. 565; 61 Ark. 207; 62 Ark. 43; 65 Ark. 335; 57 Ark. 279; 58 Ark. 277; 61 Ark. 509; 62 Ark. 348; 65 Ark. 54. If such a stipulation is violated, it creates a forfeiture. 44 S.W. 60; 62 Texas, 464; 151 U.S. 462. Such a stipulation is reasonable and valid. 61 Texas, 287; 43 Oh. St. 394; 118 Mass. 465; 20 C. C. A. 397; 86 Ky. 230; 8 Mont. 419; 36 Md. 308; 93 N.W. 19; 61 Mich. 333; 101 Ala. 634; 51 S.W. 898; 13 S.W. 1017; 61 Tex. 287; 64 Tex. 578; 50 S.W. 180; 90 Wis. 138; 72 S.W. 144. No books were kept, as stipulated in the contract. 21 S.W. 468; 24 S.W. 425; 33 S.W. 840; 44 S.W. 464; 33 S.W. 428; 61 Ark. 214; 52 Ark. 356. There was no proof of loss or waiver. 62 Ark. 47; 53 Ark. 215; 52 Ark. 11; 53 Ark. 494; 67 Ark. 589; 64 Ark. 594; 65 Ark. 290; 8 R. I. 277. The provision relating to proofs of loss is material, and must be complied with. 62 F. 222; 63 N.W. 194; 133 N.Y. 356; 84 Wis. 208, 78. There was no waiver of proofs of loss. 84 Wis. 80; 136 N.Y. 219; 141 N.Y. 219; 62 Mass. 479; 75 Wis. 198. The inventories were improperly admitted in evidence. 65 Ark. 240; 63 Ark. 203; 22 F. 226; 90 Tenn. 212. Appellee is bound by the terms of the contract. 50 Ark. 406; 58 Ark. 277; 71 F. 476. Parol negotiations leading up to a written contract are merged into the written contract. 16 Wall. 564; 91 U.S. 291; 95 U.S. 474; 96 U.S. 544; 101 U.S. 93; 104 U.S. 30, 252; 106 U.S. 252; 1 S.Ct. 313; 127 U.S. 607; 134 U.S. 306; 141 U.S. 518; 6 Allen, 552; 131 Mass. 384; 1 Rice, Ev., 304; 61 F. 280. Appellant is not liable for lumber destroyed in asbestos-roof shed. Ostrander, Ins. 706; 20 F. 240; 93 F. 731; 101 U.S. 96; 34 U.S. App. 598. Parol evidence is inadmissible to contradict the provisions of the policy. 51 Ark. 441; Rich. Ins. 55. When an insured accepts a policy, he accepts it according to the terms and descriptions mentioned in the policy. 69 Tex. 353; 133 N.Y. 356; 85 Wis. 193; 36 Wis. 599; 65 Wis. 321; 70 Wis. 1; 16 C. C. A. 45; 31 S.W. 566; 58 Ark. 277; 67 Tex. 71; 50 Ga. 404; 71 Mich. 414; 68 Wis. 298; 102 Pa.St. 17; 23 La.Ann. 219.

W. F. Coleman and Chas. T. Coleman, for appellee.

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