O'Neal v. American Equitable Assur. Co. of New York
| Decision Date | 13 February 1964 |
| Docket Number | No. 10121,10121 |
| Citation | 162 So.2d 384 |
| Parties | Gertrude O'NEAL, Plaintiff-Appellant, v. The AMERICAN EQUITABLE ASSURANCE COMPANY OF NEW YORK et al., Defendant- Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
Thomas A. Self, Many, for appellant.
Morgan, Baker, Skeels & Coleman, Shreveport, for appellee.
Before GLADNEY, AYRES and BOLIN, JJ.
Suit was instituted on April 25, 1958, by Miss Gertrude O'Neal against two insurance companies to recover for a fire loss sustained on September 6, 1956, as to the contents of a combination dwelling and store owned by Miss O'Neal. Named as defendants were the American Equitable Assurance Company of New York and the Orient Insurance Company of Hartford, Connecticut. The case was defended on three grounds; first, that suit was not timely filed; second, that the loss of stock in the store was not recoverable by reason of a breach of the iron safe clause; and, third, that satisfactory proof of loss had not been furnished. After trial judgment was rendered sustaining the defenses urged. From this decree plaintiff has appealed.
Salient facts are not in dispute. It is conceded that Miss O'Neal did not comply with the terms of the policy by furnishing a formal, notarized proof of loss, and it is admitted that the iron safe clause has been violated unless there has been a waiver thereof by the insurers. Plaintiff earnestly insists she has timely instituted the suit and also urges that defendants waived the conditions imposed by the iron safe clause.
The terms of the iron safe clause have application only to the stock of merchandise. In policies which insure stock as well as other property such as household items and fixtures, the loss is divisible and, excepting the stock, the loss can be paid where the stock is distinguishable; Stovall v. Girard Fire & Marine Insurance Co., 163 La. 284, 111 So. 707 (1927); and Moore v. Louisiana Fire Insurance Company, 177 La. 645, 647, 148 So. 904 (1933).
Miss O'Neal testified that at the time the policies were written the agents representing the two insurance companies made an inspection of the contents insured and made no inquiry as to whether or not she possessed an iron safe within which an inventory could be protected from fire as required under the provisions of the policy. In substance, in each of the policies the Iron Safe Clause stipulates that the policy shall be null and void where there is a failure to take a complete itemized inventory of stock once every calendar year or within thirty days of the issuance of the policy; failure to keep a set of books representing a complete record of business including purchases, sales and shipments from date of the inventories; and in failure to keep the books and inventory securely locked in a fire proof safe at night Or any place not exposed to a fire which would destroy the insured's building. Miss O'Neal admitted that her only inventory of the stock and merchandise in the store was destroyed in the fire. As a consequence of this, a determination of her actual loss could only be made from memory. The acts of the agents of the insurers inspecting the stock prior to the issuance of the policies is not a proper basis for holding the defendants have waived the stringent requirements of the policy. In this respect, we observe that the insured should have complied with the provisions requiring her to keep the books and inventory in a place not exposed to a fire whch would destroy the insured building, and this condition could have been met in lieu of use of an iron safe.
The plea of prescription is predicated upon a provision in each of the policies which stated:
'No suit or action on this policy for the recovery of any claim shall be sustainable in any Court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.'
Related to this clause, and necessary to consider in its application, is another provision found in the policy captioned 'When Loss Payable', and reads:
'The amount of loss for which this Company may be liable shall be payable sixty (60) days after proof of loss, as herein provided, is received by this Company and ascertainment of the loss is made either by agreement between the insured and this Company...
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