Kemendo v. Western Assur. Co.

Citation57 S.W. 293
PartiesKEMENDO v. WESTERN ASSUR. CO. OF TORONTO, CANADA.
Decision Date06 June 1900
CourtTexas Court of Appeals

Appeal from district court, McLennan county; Marshall Surratt, Judge.

Action by V. Kemendo against the Western Assurance Company of Toronto, Canada. From a judgment for defendant, plaintiff appeals. Reversed.

Suit on two policies of insurance against fire by appellant against appellee, one for $2,000, and the other for $3,000, each policy containing the iron-safe clause. The lower court instructed the jury to return a verdict for defendant, which was done, and judgment rendered accordingly, from which plaintiff has appealed. The two policies of insurance described in the petition were read in evidence. The policies sued on insured plaintiff from loss by fire $3,000 and $2,000 on his stock of staple and fancy groceries, produce, wood and willow ware, cigars, tobacco, confectionaries, and candies, all while contained in the two-story brick building on Franklin street, on lots 416-418, block 11, in Waco, Tex., "subject to the iron-safe clause attached to the policy and made a part thereof," allowing $16,000 total concurrent insurance. The iron-safe clause is pasted on the policy, and reads as follows: "(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 the policy, one shall be taken in detail within thirty days of the issuance of this policy, or this policy shall be null and void from such date. (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 the date of inventory, as provided for in the first section of this clause, and also from date of last inventory, if such has been taken, 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 secure place, not exposed to fire which would destroy such building; and, unless such books and inventories are produced and delivered to this company for examination after loss or damage by fire to the personal property insured hereunder, this policy shall be null and void, and no suit or action shall be maintained thereon. It is further agreed that the receipt of such books and inventories, and the examination of the same, shall not be an admission of any liability under the policy, nor a waiver of any defense to the same." The assured paid the premiums required by the defendant company on both policies at the time they issued, the 24th day of February, 1898, and the stock of goods covered by the policies was on the night of August 22, 1898, totally destroyed by fire, except about $865 worth of the goods, which were saved. Notice of the loss and proof of same was duly given to the company, and proof of denial of liability by it. The loss by the fire was shown to be $15,962.66. There was testimony before the court from which the jury might have concluded that a correct set of books was kept by the assured, and that they were deposited in the iron safe, and were there on the night of the fire, and that such books were in evidence. All the kept books were not actually in the safe on the night of the fire, but whether those left out were necessary to a complete understanding of the stock purchased and sold is not conclusively shown. It seems that the data furnished by the books and invoices in evidence disclosed the amount of stock purchased and sold, so that the goods destroyed by the fire could be ascertained therefrom with reasonable certainty. Inventories were taken, as required by the policy. There was testimony to the effect that the inventory taken in January, 1898, was not in the safe on the night of the fire, and that it was lost or destroyed by the fire. Ridell, witness, Kemendo's bookkeeper, speaking of the inventories, testified: "Those inventories were kept in the safe. I have seen Mr. Kemendo using them to refer to some cost price or something of that sort, which is the only use I know of their being put to. I have seen these inventories of 1897-1898 in the hands of the employés, but they were kept in the safe, and that was their place of deposit,—the place I always kept them. I do not know how they came to be out of the safe at the time of the fire, nor did I destroy them, nor did I see Mr. Kemendo take them out and hide them or destroy them. The only way that I can account for them being outside of the safe that night is that some one took them out of the safe and left them out." The witness qualifies the foregoing on cross-examination as follows: "I do not remember seeing the invoice of 1898 after completing the footings, and handing it to Mr. Kemendo. I saw an inventory in the hands of employés, but what inventory I do not know." Again, the witness says: "The adjuster requested the inventory as a basis from which to make figures, and when we declined to give it to him he told us he could not go into the loss. He refused to go into the loss because of our refusal to furnish the inventory. I showed him the books here, except the invoice book. I thought that was burned. It was out of the safe at the time of the fire, and these bills were out of the safe, but I found them since in the rubbish. We have none of the expense bills, and I suppose they were burned. I do not recall now that I ever saw the inventory of 1898 in the safe, or that I have seen it since I footed it up, and either handed it to Mr. Kemendo, or put it in the safe. When I went into the safe to get my books, I paid no attention to anything else in the pigeon holes in the safe. The inventory may have lain in there for months, and I never have seen it at all." Kemendo testified: "In taking the first inventory of January, 1898, the bookkeeper furnished him a book, and he put them in the book. In 1898 there were sheets furnished him to take down all the articles on hand, and he took two or three men in the house, and let them count the packages, and let them give the weights, and then he put down, for instance, so many cases of tobacco,—smoking tobacco,—and so many cases of plug tobacco; so many thousand cigars; so many boxes of soap; so many boxes of different kinds and variety of fancy candy; so many sacks of peanuts, almonds, walnuts, or whatever they may be, and the weight; so many sacks of potatoes. Some articles that he was very familiar with he put the cost price down without looking at the invoice book. If he found articles that were depreciated or worthless in the stock, he put them down at their true value, whatever it was worth,—just what it was worth at the time. These inventories were kept in his safe,—were kept there all the time, except as they were being used in the daytime. The employés had access to the inventories during the day for the purpose of finding out the cost and value of the goods. The only way that the witness could account for the fact that the inventory was not in the safe at the time of the fire was that some of the drummers or bookkeepers may have wanted some price, and may have left it out by accident, or may be intended to put it back again, and forgot all about it. Witness did not know that the inventories were out of the safe on the night of the fire." On cross-examination he testified: "Did not know when was the last time prior to the fire that he saw the inventories. It is a fact that he authorized his employés to use the inventories whenever it was necessary. He authorized them to take the inventories out of the safe, and then put them back in their proper place. During business hours they were usually kept out of the safe, and in the store, to be referred to for prices. The inventories during business...

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3 cases
  • Beauchamp v. Retail Merchants Association
    • United States
    • North Dakota Supreme Court
    • 20 October 1917
    ... ... 835; ... Cobb & S. shoe Store v. Aetna Ins. Co., 78 S.C. 388, ... 58 S.E. 1099; Western Assur. Co. v. Kemendo, 94 Tex ... 367, 60 S.W. 661, reversing Tex. Civ. App. , 57 S.W. 293; ... ...
  • Western Assur. Co. v. Kemendo
    • United States
    • Texas Supreme Court
    • 7 February 1901
    ...supreme judicial district. Action by V. Kemendo against the Western Assurance Company. From a judgment of the court of civil appeals (57 S. W. 293) reversing a judgment for defendant, defendant brings error. Opinion of court of civil appeals reversed, and of district court Finley, Harris, E......
  • North British Mercantile Ins. Co. v. Kemendo
    • United States
    • Texas Supreme Court
    • 11 February 1901
    ... ... by the court of civil appeals under an agreement that the cases were to abide the decision in the case of the same plaintiff against the Western Assurance Company, 57 S. W. 293. From the judgment of reversal, defendants bring error ...         PER CURIAM ...         Opinion ... ...

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