Moore v. Louisiana Fire Ins. Co. of Baton Rouge

• Decision Date: 29 May 1933
• Docket Number: 32084
• Court: Louisiana Supreme Court
• Parties: MOORE et al. v. LOUISIANA FIRE INS. CO. OF BATON ROUGE

148 So. 904

177 La. 645

MOORE et al. v. LOUISIANA FIRE INS. CO. OF BATON ROUGE

No. 32084

Supreme Court of Louisiana

May 29, 1933

Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; George K. Favrot, Judge.

Suit by Ebb M. Moore and another against the Louisiana Fire Insurance Company of Baton Rouge. From the judgment, defendant appeals plaintiffs answering the appeal.

Affirmed.

St Clair Adams, of New Orleans, and Taylor, Porter & Brooks, of Baton Rouge, for appellant.

Laycock & Moyse, of Baton Rouge, for appellee.

OPINION

LAND, Justice.

Plaintiffs constituted a commercial partnership, known as Louisiana Auto Top Company, and as such operated in the city of Baton Rouge from the latter part of the year 1930, until January 1, 1932 when the partnership was dissolved.

Defendant company issued a fire insurance policy in the sum of $ 6,600 in favor of "E. M. and E. J. Moore, doing business as Louisiana Auto Top Company," for one year, from January 1, 1931, to January 1, 1932, covering the stock of merchandise, and the machinery and equipment of said company contained in its shop, situated on North boulevard in the city of Baton Rouge.

The property insured was destroyed by fire July 24, 1931; the value of the stock of merchandise lost being estimated by said company at $ 6,150.02, and the value of the machinery and equipment at $ 1,576.45.

The present suit to recover the full amount of the policy, 12 per cent. as damages under Act No. 168 of 1908, and a reasonable attorney's fee, estimated as 20 per cent. of the policy, was filed in the lower court February 25, 1932.

Payment of plaintiffs' claim was resisted by defendant company because of alleged violations of the iron-safe clause, which contained the specific provision that it applied to stock items only.

In the lower court plaintiffs obtained judgment against defendant company in the sum of $ 1,500, the value of the equipment and machinery insured, with 5 per cent. interest per annum thereon from judicial demand until paid, together with 12 per cent. as statutory damages, and 15 per cent. as attorney's fees.

From this judgment defendant company has appealed.

1. Plaintiffs admit that they did not produce an inventory and a set of books which showed the details of the business from July 1, 1931, to the date of the fire, July 24, 1931, a period covering about three weeks, and that such failure constitutes a breach of the iron-safe clause that would ordinarily bar recovery on the policy.

But, say plaintiffs, books were actually kept up to the date of the fire, but could not be produced because they were destroyed in the fire, and defendant company is estopped, under Act No. 222 of 1928, from invoking the iron-safe clause as a defense in this particular case, for the reason that said company well knew, at the date the policy was delivered to plaintiffs, that plaintiffs did not havean iron safe on the premises.

Conceding, for the sake of argument, that Act No. 222 of 1928 may be so construed, and that defendant company had the knowledge imputed to it by plaintiffs, it is clear that plaintiffs' plea of estoppel is not applicable to defendant company in this particular case.

Paragraph 3 of the iron-safe clause of the policy sued upon provides that: "The assured will keep such books and inventory, and also the last preceding inventory, if such has been taken, securely locked in a fire-proof 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 place not exposed to a fire which would destroy the aforesaid building."

Although plaintiffs may have failed to keep their books and inventories in a fireproof iron safe on the premises, yet, had they kept them in some other safe place and produced them, it is clear that they would not have violated the iron-safe clause, by exercising such alternative right, and that they could recover upon the policy for the loss sustained.

But plaintiffs, in this case, kept their books and inventories neither in a fireproof iron safe nor in any other safe place, and are therefore barred from recovery for the stock and merchandise, because of the total breach of the warranty contained in the iron-safe clause.

2. Defendant company also contends that plaintiffs should not recover for the loss of their equipment and machinery in this case, because the policy does not cover different classes of property, separately valued, but only covers a stock of merchandise, equipment, and machinery, etc., under one valuation, thereby making the contract indivisible, and, if void in one part, it is void in whole.

There are two conflicting lines of decisions in this country as to the indivisibility of policies of insurance.

Some of the cases hold that a policy of insurance, the consideration of which is a premium in a gross sum, is entire and indivisible, though the contract insures different classes of property in separate amounts.

We departed from this line of decisions in Thompson v. State Assurance Co., 160 La. 683, 107 So. 489. At page 690 of that case in 160 La. 107 So. 489, 492, the...