Holler v. German Am. Ins. Co

• Decision Date: 03 November 1910
• Court: Virginia Supreme Court
• Parties: HOUFF & HOLLER. v. GERMAN AMERICAN INS. CO.

110 Va. 585

66 S.E. 831

HOUFF & HOLLER.

v.GERMAN AMERICAN INS. CO.

Supreme Court of Appeals of Virginia.

Jan.13, 1910.

1. Insurance (§ 335^*)—Iron-Safe Clause-Compliance.

Under an iron-safe clause requiring the keeping of a complete itemized inventory, the insurer has a right to such a compliance with its terms as will inform him fairly as to the stock carried by the insured, and, in case of loss, as to the stock burned and the fair cash value thereof.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 853; Dec. Dig. § 335.*]

2. Insurance (§ 335*)—Iron-Safe Clause-Making Inventory.

A summary stating merely the value of each line of goods, as shown by general footings of an itemized inventory taken by the insured but not preserved, is not a "complete itemized inventory" required by an iron-safe clause.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 853; Dec. Dig. § 335.*]

3. Trial (§ 199*) — Instructions — Province of Court and Jury—Deciding Questions of Law.

A requested instruction that if the insured made an itemized statement of each line of goods in their stock, but only preserved the general footings of each line as the inventory "then this inventory, is not a complete itemized inventory provided for in the policy, " was given with a modification making the quoted clause read "then this inventory is a matter for the jury to consider whether or not a complete itemized inventory." Held erroneous, as leaving a question of law to the jury.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 467-470; Dec. Dig. §^199.*]

4. Insurance (§ 335*)—Iron-Safe Clause-Keeping Books.

Insured, a mercantile firm, who kept invoices showing all purchases, but kept no record of daily sales, except credit sales, deposited in a bank all moneys collected from accounts and cash sales, but their bank book did not discriminate between deposits made by fhe_ firm and those made by one of them in his individual capacity. Held, that such book was not a substantial compliance with an iron-safe clause requiring the insured to keep a set of books which shall clearly present a complete record of sales for cash or credit.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 853; Dec. Dig. § 335.*]

5. Trial (§ 199*) — Instructions — Province op Court and Jury—Reciting Questions of Law.

A requested instruction that if the insured firm deposited in a bank all the money collected from accounts and cash sales, and also deposited along with such sums to their credit in the same account moneys collected by one of the firm from his separate business, "then said bank book does not constitute a book stating clearly and plainly a complete record of all sales both for cash and credit, as provided for in the policy, " was given with the modification making the quoted clause read "it is for the consideration of the jury whether said bank book does constitute a book showing clearly and plainly a complete record of all sales both for cash and credit." Held erroneous, as leaving a question of law to the decision of the jury.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 467-470; Dec. Dig. § 199.*]

Error to Circuit Court, Augusta County..Action by Houff & Holler against the German American Insurance Company. From a judgment for defendant, plaintiffs bring error. Affirmed.

Curry & Curry and R. S. Kerr, for plaintiffs in error.

Hanckel & Hanckel, A. C. Gordon, and Jos. A. Glasgow, for defendant in error.

KEITH, P. The appellants brought suit in the circuit court of Augusta county against the German American Insurance Company to recover the amount of a fire insurance policy for $1,000. The case went to a jury, whichsave a verdict for the plaintiffs for the full amount of the policy, which upon motion of the defendant was set aside, and at a subsequent trial there was a verdict and judgment for the defendant.

With respect to the second trial no error is assigned, so that we have only to consider the bills of exception taken to the rulings of the court upon the first trial, and to determine whether or not the court erred in setting aside the first verdict.

Upon the first trial there was evidence which proved, or tended to prove, that in the year 1907 the plaintiffs conducted a general mercantile business in the county of Augusta, and that on the 2d of February of that year the German American Insurance Company issued a fire insurance policy for $1,000 on their stock of goods; that at that time the plaintiffs already held two policies on their stock, one for $1,500, issued to them by the Hartford Insurance Company, and the other for the same amount, issued by the Loudon Mutual. Taylor & Perry, of Staunton, Va., were the general agents of the German American Insurance Company, and by letter dated the 1st of February, 1907, plaintiffs applied to them for insurance, which was issued on the next day, and at the time this application was made to them as agents they were asked to come and examine the stock of goods plaintiffs then had on hand in their store. They did not, however, examine the stock until the latter part of September, 1907, and on the night of the 6th of November of the same year the entire stock of goods, estimated to be of the value of $5,455.18, was completely destroyed by fire.

The examination of the stock above referred to was made by William J. Perry, the active member of the firm of Taylor & Perry. Plaintiffs had taken an inventory of their stock on January 7, 1907, which showed that at that time it was of the value of $5,455.18, and this inventory and the books and files showing a complete record of their business from the date of the inventory to that time were shown to Mr. Perry and carefully examined by him, and, after having looked into and investigated everything, he expressed himself as perfectly satisfied, and, in fact, was so well satisfied that he told plaintiffs that they did not have sufficient insurance to cover their stock, and urged them to take out more insurance in his company. The company, after it had received notice of the character of records that plaintiffs had and kept of their business, through their general agents, Taylor & Perry, made no objection whatever to their inventory or to the mode of keeping their records, and, in effect, gave them to understand that the company was perfectly satisfied, and petitioners relying upon this assurance of the company's agents, and upon the fact that they were not asked to change their mode of keeping records after full no tice, plaintiffs in no way changed their mode of bookkeeping, and their entire stock of goods was consumed by fire on the 6th day of the following November, and plaintiffs never received any intimation of any objection to the character of their records and to their manner of keeping the same until some days after the fire.

These are such of the facts which the evidence of plaintiffs tended to prove as we deem material to the questions which we shall discuss, and upon which our judgment will depend.

The defendant relied for its defense upon the following clauses of the policy:

"(1) The assured will take a complete itemized inventory of 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 this policy, one shall be taken in detail within 30 days of issuance of this policy, or this policy shall be null and void from such date, and upon demand of the assured the unearned premium from such date shall be returned.

"(2) The assured will keep a 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, from date of inventory as provided for in first section of this clause, and during the continuance of this policy.

"(3) The assured will keep such books and inventory, and also the last preceding inventory, if such has been taken, securely locked in a fireproof safe at night, and at all times when the building mentioned in this policy is not actually open for business; or, failing in this, the assured will keep such books and inventories in some place not exposed to a fire which would destroy the aforesaid building.

"In the event of failure to produce such set of books and inventories for the inspection of this company, this policy shall become null and void, and such failure shall constitute a perpetual bar to any recovery thereon."

There was evidence tending to show that an inventory of the stock on hand was taken on the 7th of January, 1907, as follows: "Shoes, 1200 prs., cost $1800.00; gloves, 70 prs., $70.00; dry goods and notions, $1400.-50; groceries, tobacco,...