Hamann v. Nebraska Underwriters Insurance Company

• Decision Date: 22 October 1908
• Docket Number: 15,232
• Parties: FRED C. HAMANN ET AL., APPELLEES, v. NEBRASKA UNDERWRITERS INSURANCE COMPANY, APPELLANT
• Court: Nebraska Supreme Court

118 N.W. 65

82 Neb. 429

FRED C. HAMANN ET AL., APPELLEES, v. NEBRASKA UNDERWRITERS INSURANCE COMPANY, APPELLANT

No. 15,232

Supreme Court of Nebraska

October 22, 1908

APPEAL from the district court for Saunders county: ARTHUR J. EVANS JUDGE. Affirmed.

AFFIRMED.

Halleck F. Rose and Wilmer B. Comstock, for appellant.

John H Barry, contra.

OPINION

REESE, J.

This is an action on an insurance policy issued by the defendant to the plaintiffs upon a stock of merchandise consisting of hardware, paints and oils; said policy being dated March 30 1906. The insured property had, lately before the issuance of the policy, been removed from the village of Yutan, in Saunders county, to the proposed village of La Shara, in the same county, some eight miles away, but which at that time was no more than a station on a newly constructed railroad. At the time of the removal of the goods, which was about the 1st of February of the same year, an inventory was taken, and the value found to be $ 4,670. The policy was delivered to the assured some two weeks after its date, and about two weeks thereafter the building in which the goods were kept, and which was newly constructed, together with all its contents, was totally destroyed by fire. The inventory and all books of account were also destroyed, no fire-proof safe being kept in the store building. Upon notice of the fire being given to defendant it denied all liability upon the policy, basing such denial upon the failure of the assured to comply with the conditions and requirements of what is usually termed "the fire-proof safe clause" contained in the policy. The amount insured by the policy was $ 500. The petition was in the usual form. The answer, in addition to its denials, contained two specific defenses, numbered second and third therein. The third defense set up the requirements of the policy as to giving formal notice and proofs of the loss, and alleged that the plaintiffs had failed and refused to furnish such proofs, as by the policy required. As we have said, all liability under the policy was denied; and, as it is conceded that such denial constituted a waiver of this defense, no further attention need be given to it. The second defense set out the "fire-proof safe clause" of the policy, and alleged that plaintiffs had failed and refused to comply with any of its provisions, and that by the terms of the policy such failure absolved defendant from all liability for the loss. The clause referred to, with a description of the insured property, is contained in a "sticker" or "rider" pasted in the policy, and is as follows: "It is expressly warranted by the assured that the assured shall take an inventory of the stock hereby covered at least once a year during the life of this policy, and shall keep books of account, correctly detailing all purchases and sales of said stock, and shall keep said inventory and books securely locked in a fireproof safe, or in some place secure against fire in another building during the hours said store is not open for business; and in case of loss the assured agrees and covenants to produce such books and inventory, and in the event of failure to produce the same or any of them on demand, or failure to comply with any one of the above conditions, this policy shall be null and void, and no suit or action at law shall be maintained thereon for such loss."

It is claimed by defendant that this clause is a promissory warranty, and that it is binding in all its terms; while plaintiffs insist that the clause has no binding force, for the reason that they had no notice or knowledge of its existence, and that the requirement to keep the inventory and books of account in a fireproof safe must be construed together; that the requirement of the policy that "the assured shall take an inventory of the stock hereby covered at least once a year during the life of the policy" gave to plaintiffs one year in which to take the inventory, and the policy being of only one year's duration, no inventory was required, and until such inventory was taken the obligation of the clause as to both the inventory and the books of account was suspended. It is also claimed that the local agent who issued the policy knew that plaintiffs had no safe at the time of the delivery of the...