Mechanics Insurance Co. v. Thompson

• Decision Date: 11 February 1893
• Citation: 21 S.W. 468,57 Ark. 279
• Parties: MECHANICS INSURANCE CO. v. THOMPSON
• Court: Arkansas Supreme Court

21 S.W. 468

57 Ark. 279

MECHANICS INSURANCE CO. v. THOMPSON

Supreme Court of Arkansas

February 11, 1893

Appeal from Faulkner Circuit Court, ROBERT J. LEA, Judge.

Reversed and remanded.

Eben W Kimball and E. A. Bolton for appellant.

1. The provisions in the application, which are made a part of the policy, are promissory warranties, upon the truth of which the validity of the policy depends. 11 Am. & Eng. Enc. of Law, p. 290 and notes; May on Insurance, p. 160, sec. 156; Wood on Insurance, p. 422, etc.; Arnold on Insurance, p. 587.

2. The testimony shows a failure to comply with these warranties which must be literally kept, and their non-observance defeats a recovery on the policy. Authorities supra; Wood Ins. secs. 179 and note, 180-1-2; Smith, Merc. Law, p. 453.

3. The assured must prove a literal compliance affirmatively--the burden is on him to do so. Bailey, Onus Probandi, p. 128; Wood, Fire Ins. sec. 507; May, Ins. sec. 183; 51 Ark. 447.

Sam Frauenthal and J. H. Harrod for appellee.

1. Mere carelessness and negligence, however great in degree, of the insured or his servants, or tenants, not amounting to fraud, though the direct cause of the fire, are covered by the policy. May on Ins. sec. 408.

2. Thompson was not working at night in violation of the policy. The stipulation means not to work or run the gin machinery in the usual course of business. Language is taken most strongly against the insurer. Ib. sec. 175. See also 16 N.Y.S. 415; 92 Pa.St. 15; May, Ins. sec. 241; 6 Ad. & El. 670; May, Ins. sec. 253.

3. Insurers are confined to the exact words of the warranty. May, Ins. (3d ed.), sec. 178. Promissory warranties are not so strictly construed, but a substantial compliance is sufficient. 4 Cliff. 203, 272; 8 Metc. (Mass.), 120; 18 P. 267. See also 8 Cush. (Mass.), 84.

OPINION

BATTLE, J.

On the 14th of October, 1890, the Mechanics & Traders Insurance Company, by its policy of that date, insured the gin-house, gin-stand, other machinery and fixtures of H. L. Thompson against fire. The property insured was burned on the night of the 17th of December, 1890, about 11 o'clock. To recover the loss sustained, Thompson brought this action against the insurance company. The defense set up was the breach of two warranties.

The policy made the assured's application to the defendant for insurance a part thereof and a warranty. In this application are the following questions and answers: "Will you warrant not to work at night, or by artificial light, and to permit no smoking about the premises?" Answer: "Yes." "Will you agree as a condition of this insurance to keep in the same room, and within ten feet of the gin-stand, one barrel full of water and two buckets?" Answer: "Yes." These are the two warranties set up in defense.

The facts relied on to show a breach of the first agreement or warranty are as follows: Some part of the machinery in the gin-house broke during the day before the fire, and the cotton press was out of repair. Thompson, the assured, came to Little Rock to get pulleys made, and returned during the night of the 17th of December, 1890. He went into the gin-house on that night, about 11 o'clock, to prepare to go to work early on the following morning. His object in going there, as he testified, was to collect the screws and taps necessary to repair the machinery. One or two other witnesses testified that he said, soon after the fire, that his intention was to fix the machinery. Whatever his object was, to accomplish it it was necessary to use his lantern which was in the gin-house. To find it, he struck two or three matches. The head of one of them, as he struck it, fell off into the cotton in the gin-house, where he then was, and caused a fire, which soon consumed the house and cotton, and seriously damaged the machinery.

How he complied with the second agreement is shown by the following facts: The gin-stand was in the second story of the gin-house. This story was about twenty-four by fifty feet and was divided by a partition nailed to the floor and the upper joists. In one side there were stalls for seed cotton, in the other was the lint room. The part used for a lint room was about fourteen by twenty-four feet, and the other room was about thirty-six by twenty-four feet. The gin-stand was in the middle of the partition, about fourteen feet from one end of the house and about thirty-six feet from the other. It was about eight feet square, and stood about three-fourths in the seed cotton room and one-fourth in the lint room. There were...