Ortiz v. National Liberty Ins. Co. of America

• Decision Date: 17 February 1948
• Docket Number: Civ. No. 4887.
• Parties: ORTIZ v. NATIONAL LIBERTY INS. CO. OF AMERICA.
• Court: U.S. District Court — District of Puerto Rico

75 F. Supp. 550

ORTIZ v. NATIONAL LIBERTY INS. CO. OF AMERICA.

Civ. No. 4887.

District Court, Puerto Rico.

February 17, 1948.

R. Martinez Alvarez and Ruiz Suria & Ruiz Suria, all of San Juan, P. R., for plaintiff.

Wilson P. Colberg, of San Juan, P. R., for defendant.

DAVID CHAVEZ, District Judge.

This matter comes up for decision upon defendant's motion for summary judgment. Defendant moves for summary judgment on the grounds that under the pleadings and affidavit of plaintiff, of record in this case, no material issue of fact exists, and defendant, as a matter of law, is entitled to a summary judgment.

The facts briefly stated are as follows: Plaintiff was the owner of a dry goods and hardware store located in Santurce, Puerto Rico, which was insured by the defendant company in the amount of $6000. On the early morning of 27 July 1946, and within the terms of the contract of insurance, the property of plaintiff was totally destroyed by a fire and he sues under the insurance policy. The affidavit of plaintiff discloses that at the time of the fire he was at Vega Baja, Puerto Rico, and that the last time he was in the store was "on July 26, in the morning, that is the day before; I closed it and left." Also, that he did not have an iron safe and that the books, documents, invoices, cancelled checks, etc., relating to the business, were destroyed by the fire.

Defendant relies on the insurance policy which contains an "iron safe clause" and "bookkeeping clause," the pertinent parts being as follows:

"* * * That Insured shall keep these books and the last preceding inventory, if it has been made, duly locked under key in a fireproof safe in the night time and at all times when the building mentioned in this policy is not open to commercial operations; and in the absence of such a safe the Insured shall keep said books and inventories at a place that is not exposed to any fire that might destroy aforesaid building.

"In the event of a failure to present the set of books and inventories for an examination by this Company, at the place where the policy is issued, this contract will be void and without effect, and the Company shall be relieved of all liability thereunder."

Plaintiff admits in his affidavit:

(1) That he did not have an iron safe in his establishment.

(2) That the books and documents such as invoices, cancelled checks, etc., relating to the business, were destroyed by the fire.

(3) That at the time of the fire plaintiff was at Vega Baja, Puerto Rico.

(4) That the last time he was in the store was "on July 26, in the morning, that is the day before; I closed it and left."

The complaint alleges that the fire occurred "on the early morning of July 27, 1946."

Plaintiff contends, however, that he can show, at a trial, substantial compliance with the contract. He contends that (1) the pleadings and (2) plaintiff's statement are sufficient to defeat defendant's motion for summary judgment.

With this contention the Court cannot agree. In Fletcher v. Krise, 73 App. D.C., 266, 120 F.2d 809, the point was raised that on motion for summary judgment, the Court could only consider the case on plaintiff's complaint and should have ignored defendant's answer and exhibits. The Court overruled this contention, and held that such a contention was a misconception of the rule, and set out that the purpose of Rule 56, Federal Rules...