Jones v. Southern Ins. Co.

• Decision Date: 03 February 1889
• Citation: 38 F. 19
• Parties: JONES et al. v. SOUTHERN INS. CO.
• Court: U.S. District Court — Eastern District of Arkansas

38 F. 19

JONES et al. v. SOUTHERN INS. CO.

United States Circuit Court, E.D. Arkansas.

February 3, 1889

On the 1st day of October, 1887, the defendant issued to the plaintiffs a policy of insurance for $3,000, against loss by fire on their stock of general merchandise in their store-house at Riverside. The store-house and goods, and most of the plaintiffs' mercantile books, were destroyed by fire, and this is a suit to recover the amount of the policy. The policy contains this clause.

'The assured, under this policy, hereby covenants and agrees to keep a set of books, showing a complete record of all 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 a 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 the event of the failure to produce the same, this policy shall be deemed null and void, and no suit or action at law shall be maintained thereon for any such loss.'

Two grounds of defense are interposed: (1) That the fire occurred 'at night,' and that the plaintiff's mercantile books were in the store and burned, and were not, as required by the terms of the policy, in a fire-proof safe, or other place secure from destruction by a fire which would destroy the store-house. (2) That the fire occurred at a time when the store was 'not actually open for business,' and that the books were in the store-house, and not in a fire-proof safe, and were burned. The facts are that the fire occurred about 9 o'clock P.M. on the 9th day of December 1887; that the plaintiffs had a fire-proof safe in their store-house, in which their mercantile books were kept when not in use; that it was the plaintiffs' custom, upon opening the store in the morning, to take the books out of the safe, and lay them on the counter for use during business hours, and they were kept out until the business of the day was closed, and the books posted and written up, when they were put in the safe, which was then locked; that the books were written up during the evening of each day, after the rush of business was over. The store was kept open for customers and business transacted until 8 or 9 o'clock and on occasions as late as 11 o'clock at night; and customers coming during these hours were always admitted and waited upon, though at times during these hours the front door was locked to prevent the intrusion of improper characters who might depredate on the stock without detection owing to the construction of the store-room, and the imperfect method of lighting it at night, but the door was always opened to customers knocking for admission, and business was carried on until 8 and 9, and sometimes as late as 11 o'clock at night. This mode of conducting the mercantile business was common with merchants in the town and in that region of the country, and was essential to their success in trade. When the fire broke out, the front door of the store-house was locked, but the business of the day was not closed, and the door would have been opened to any one knocking for admission. The clerk completed his work, when, upon invitation, he stepped into a store next door to eat a plate of oysters, and while in there he discovered the fire. When the fire broke out one of the plaintiffs, who carried the key to the safe, was in his family room, which connected with the store-room, waiting to put the books in the safe, according to custom, as soon as they were written up and the business of the day over, and the store closed for the night.

J. M. Moore, for plaintiffs.

U. M. & G. B. Rose, for defendant.

CALDWELL J., (after stating the facts as above.)

Literally night is that part of the natural day between sunset and sunrise. Are the words 'at night,' in the policy in suit, to be given that meaning? The object of this clause is to provide against the loss of the merchants' books by fire. The loss of the books by fire in the day-time is just as injurious as their destruction at night. Why, then, did not the insurer stipulate that the books should be kept secure from destruction by fire at all times? For the obvious reason that the books must be used during the time that the business is carried on, and to that end they must be kept on the desk or counter of the store. But after the business of the day is over, and there is no longer occasion to use the books, and the store is closed for the night, there is no hardship in requiring that they shall not be left to the hazard of destruction by fire. Besides, as long as there is some one in the store,...