Home Ins. Co. of New York v. Delta Bank

• Decision Date: 19 February 1894
• Citation: 71 Miss. 608,15 So. 932
• Court: Mississippi Supreme Court
• Parties: HOME INSURANCE CO. OF NEW YORK v. DELTA BANK

15 So. 932

71 Miss. 608

HOME INSURANCE CO. OF NEW YORK v. DELTA BANK

Supreme Court of Mississippi

February 19, 1894

FROM the circuit court of Leflore county, HON. R. W. WILLIAMSON Judge.

The Delta Bank of Greenwood, Miss. as assignee of a policy of fire insurance, brought this action against the Home Insurance Company, of New York, to recover for loss of a stock of merchandise covered by the policy. The amount demanded was two thousand dollars, being the full amount of the policy. The property insured is described in said policy as "a stock of merchandise, consisting of dry goods groceries, boots, shoes and such other merchandise not more hazardous, usual to his trade, while contained in the first story of the two-story brick building, situated in the city of Greenwood, Miss. occupied by assured as general store."

Among other clauses contained in the policy, are the following:

"Three-fourths Value Clause.--It is a condition of this this policy that, in an event of loss or damage by fire to the property insured this company shall not be liable for an amount greater than three-fourths of the cash value of the same, not exceeding the amount of this policy at the time immediately preceding any loss or damage; and, in the event of other insurance on the property insured, then this company shall be liable for its proportion of three-fourths such cash market value at the time of the fire."

"Iron Safe Clause.--The assured under this policy hereby covenants and agrees to keep a set of books showing a record of business transacted, including all purchases and sales, both for cash and credit, together with the last inventory of said business; and further covenants and agrees to keep such books and inventory securely locked in a fire-proof safe at night and at all times when the store mentioned in the within policy is not actually open for business, or in some secure place, not exposed to fire which would destroy the house where such business is carried on; and, in case of loss, the assured agrees and covenants to produce such books and inventory, and, in event of the failure to produce the same this policy shall be null and void, and no suit or action at law shall be maintained for such loss."

The defendant filed, among others, a special plea setting up a breach by Stein, the insured, of the above-quoted iron safe clause of the policy. To this plea plaintiff filed a replication, averting that Stein did keep a set of books showing a complete record of business transacted, including all purchases and sales, both for cash and credit, as required by the terms of said policy, and that the said Stein did produce such books upon request. Several other replications were filed, which, while not distinctly averring a compliance with the iron safe clause, sought to avail of waivers which plaintiff claimed had been made by the agent of defendant. No question of overvaluation or the existence of other insurance is presented by the pleadings.

The defendant filed a demurrer to these replications, but the record in this court fails to show that any action was taken on the demurrer, or that it was in any way disposed of. On motion in this court by the appellant to perfect the record so as to show an order overruling the demurrer, a certiorari was issued to the clerk of the circuit court to supply the supposed defect, but the return on the writ of certiorari disclosed that the minutes of the circuit clerk showed no disposition of the demurrer, and the motion of the appellants for leave to show such order by extrinsic evidence was refused.

The defendant filed rejoinders taking issue on the replications, and the case proceeded to a trial thereon, resulting in a verdict for plaintiff for two thousand dollars, the amount of the policy. There was no motion for a new trial. Defendant appeals on special bills of exceptions taken to divers rulings on the evidence, to the refusal of its motion to exclude evidence, and to the giving of instructions for the plaintiff.

The evidence showed that the stock of merchandise was burned January 30, 1893, without fault of the insured, and that the loss was total; that the stock, prior to March 11, consisted of dry goods, clothing, boots, shoes and goods of like character usually kept in a dry goods store; that an inventory of the goods then on hand had been taken on March 1, 1892, but when the safe was opened after the fire the book was not in it, and plaintiff testifies that it must have been left out through mistake.

On March 11, 1892, Stein purchased a stock of groceries and added a grocery department to the store. The goods were purchased as an entire stock from one Bacon, who furnished an inventory thereof, which Stein compared and checked off to see if it was correct. No inventory was ever made of the goods in this department after their purchase by Stein. The stock of groceries...