Home Fire Ins. Co. v. Driver

• Decision Date: 13 July 1908
• Citation: 112 S.W. 200
• Parties: HOME FIRE INS. CO. v. DRIVER.
• Court: Arkansas Supreme Court

112 S.W. 200

HOME FIRE INS. CO. v. DRIVER.

Supreme Court of Arkansas.

July 13, 1908.

Appeal from Circuit Court, Madison County; J. S. Maples, Judge.

Action by I. D. Driver against the Home Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

Harris & Ivie and C. P. Harnwell, for appellant. Walker & Walker, for appellee.

McCULLOCH, J.

This is an action to recover the amount of loss under a fire insurance policy issued by appellant company to appellee on his stock of merchandise situated in the village of Witter in Madison county. The policy is a standard form. Appellant relies on three grounds of defense, viz.: (1) A breach of warranty in the iron-safe clause with reference to keeping a set of books and preserving the same in an iron safe or other safe place; (2) a breach of the warranty against incumbrances of the insured property; and (3) failure to furnish proof of loss within 60 days after the fire. The evidence establishes the fact that the insured property formerly composed a part of a stock of merchandise at Aurora, Ark., which appellee purchased and removed to Witter about two months before the issuance of the policy sued on. The policy was issued July 21, 1906, and the fire occurred in September of the same year.

Appellee's bookkeeper testified that, when the goods were moved from Aurora to Witter, an inventory of same was taken and afterwards added thereto, from time to time as goods were purchased and placed in the store. He further testified that said inventory was a complete one of all goods placed in the store at Witter, and that he kept the same until after the fire, and produced it at the trial. He testified that he kept a pocket memorandum book, which was preserved until after the fire, in which itemized accounts of all credit sales and the amount of each day's cash sales were kept. This book, it appears from the evidence, had become worn out from use after the fire; but its contents were copied in full into another book, which was produced at the trial. This evidence, according to recent decisions of this court, warranted a finding by the jury that appellee had complied with the terms of the policy with reference to keeping books. People's Fire Ins. Ass'n v. Gorham, 79 Ark. 160, 95 S. W. 152; Security Mutual Ins. Co. v. Woodson, 79 Ark. 266, 95 S. W. 481, 116 Am. St. Rep. 75; Ark. Mutual Fire Ins. Co. v. Stuckey, 85 Ark. 33, 106 S. W. 203; Ins. Co. v. McManus (Ark.) 110 S. W. 797. It was not essential that the identical book of account should be presented at the trial. Preservation until after the fire and production on demand of the company was all that was required by the terms of the policy. Pelican Ins. Co. v. Wilkerson, 53 Ark. 353, 13 S. W. 1103; Ark. Fire Ins. Co. v. Woolverton, 82 Ark. 476, 102 S. W. 226.

The record shows that the stock of merchandise at Aurora was mortgaged, with other property, to the Madison County Bank, and it is proved by oral testimony that when appellee moved the stock to Witter the bank, by oral agreement made by its president, consented to the removal and released it from the...