Northwestern Nat. Ins. Co. v. Mize

• Citation: 34 S.W. 670
• Parties: NORTHWESTERN NAT. INS. CO. v. MIZE.
• Decision Date: 26 February 1896
• Court: Court of Appeals of Texas

34 S.W. 670

NORTHWESTERN NAT. INS. CO. v. MIZE.

Court of Civil Appeals of Texas.

February 26, 1896.

Appeal from district court, Grayson county; Don A. Bliss, Judge.

Action by O. A. Mize against the Northwestern National Insurance Company on a fire policy. From a judgment for plaintiff, defendant appeals. Reversed.

Crenshaw & Culver and Oeland & Smith, for appellant. Hazlewood & Smith, for appellee.

FLY, J.

Appellant sued for $1,300 alleged to be due under a fire insurance policy, by reason of the destruction of certain personal property by fire, and recovered a judgment for $801.60. There was a jury trial. The goods were destroyed by fire. Appellee did not keep, and put in an iron safe or other safe place, a set of books, or produce them after the fire. There was evidence to the effect that a local agent of appellant told appellee that it was not necessary to have an iron safe or to keep a set of books. The terms of the policy demanded that these things should be done, and provided that no agent should have the authority to waive the requirement. Appellant had no notice of any attempted waiver on the part of its agent. The property destroyed by the fire was alleged to be worth certain gross sums, and there was appended to the petition itemized lists of the property, with values attached, which are referred to in the petition. The description of the property was sufficient.

The following clause is found in the policy of insurance upon which this suit is founded: "The assured, under this policy, hereby covenants and agrees to keep a set of books showing a complete record of business transacted, including all purchases and sales, both for cash and for credit, together with the last inventory of said business; and further covenants and agrees to keep such books and inventory securely locked in a fireproof safe at night, and at all times when the store mentioned in the within 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." The testimony shows, without contradiction, that appellee did not have an iron safe, and made no pretense to comply with the conditions expressed in the clause in question. To avoid the effects of the agreement, it was alleged and proved that, at the time the policy was tendered to appellee, the agent of appellant told him that it was not necessary to comply with the requirements in the clause. Appellee read and fully understood the clause in question, and with this knowledge accepted it. It is well settled that the conditions in the iron-safe clause constituted a warranty upon the part of appellee Kelley-Goodfellow Shoe Co. v. Liberty Ins. Co., 8 Tex. Civ. App. 227, 28 S. W. 1027; American Fire Ins. Co. v. First Nat. Bank (Tex. Civ. App.) 30 S. W. 384; Insurance Co. v. Brown (decided by this court at this term) 34 S. W. 462. Being a warranty, a strict compliance with its conditions is required; and, unless this was done, or a compliance was waived by appellant, a recovery on the policy cannot be sustained. The testimony shows that the local agent who issued the policy did not report to the general agents of the company anything in regard to the waiver of the...