Palatine Ins. Co. v. Brown

• Decision Date: 29 January 1896
• Citation: 34 S.W. 462
• Parties: PALATINE INS. CO. v. BROWN.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

34 S.W. 462

PALATINE INS. CO. v. BROWN.¹

Court of Civil Appeals of Texas.

January 29, 1896.

Error from district court, Ellis county; J. E. Dillard, Judge.

Action by N. Brown against the Palatine Insurance Company on a fire policy. From a judgment for plaintiff, defendant brings error. Reversed.

Morgan & Thompson, for plaintiff in error. M. B. Templeton and Crawford & Crawford, for defendant in error.

Conclusions of Fact.

FLY, J.

On the 9th day of March, A. D. 1893, the defendant herein, Palatine Insurance Company, issued to the plaintiff herein, N. Brown, its policy of insurance, No. 54,003, as follows:

"Palatine Insurance Company, of Manchester, England, in consideration of the stipulations herein named, and of $24, does insure N. Brown, for the term of one year from the 9th day of March, A. D. 1893, at noon, to the 9th day of March, A. D. 1894, at noon, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding the sum of $1,500, to the following described property, while located and contained as described herein, and not elsewhere, to wit: Stock and store building (three-fourths value and iron safe clause). $1,500 on his stock of merchandise, consisting of dry goods, clothing, boots, shoes, hats, caps, and notions, and such other merchandise, not more hazardous, as is usually kept for sale in dry-goods stores, while contained in the two-story, metal-roofed brick building, occupied by the assured as a dry-goods store, and by ____ as ____, as situated on the north side of Main street, on lot No. 311, block No. 2, in Waxahachie, Texas. $____ on ____ building above described, while so occupied. $____ on ____ store and office furniture and fixtures, including iron safe, while contained in the above-described building. $____ on ____. $17,500 total concurrent insurance permitted, including this policy, as follows, viz.: $____ on stock; $____ on building; $____ on furniture and fixtures; $____ on ____. Special reference being made to the assured's application No. ____, on which this insurance is based, and which is hereby made a warranty by the assured, and a part of this policy. Electric light permitted.

"Three-fourths value and iron-safe clause: It is a condition of this policy that, in the event of loss or damage by fire to the property insured, this company shall not be liable for an amount greater than three-fourths of the cash market value of the same, not exceeding the amount of said policy, at the time immediately preceding the loss or damage; and, in the event of other insurance on the property insured, then this company shall be liable only for its proportion of three-fourths of such cash market value at the time of the fire. The assured under this policy hereby covenants and warrants to keep a set of books, showing a record of business transacted, including all purchases and sales, both for cash and credit, together with the last inventory of the stock insured, and further covenants and warrants 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 policy 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 warrants and covenants to produce such books and inventory, and in the event of a failure to produce the same, this policy shall be deemed to be null and void, and no suit or action at law shall be maintained thereon, for any such loss.

"This form is attached to and constituted the written and descriptive portions of policy No. 454,003, of the Palatine Insurance Company, of Manchester, England.

                        "Langsford & Phillips, Agents
                

"This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deductions made for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality.

"This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto, and no officer, agent, or representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon, or added hereto; and, as to such provisions and conditions, no officer, agent, or other representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached."

(2) At the time said policy was issued and delivered to the plaintiff herein, he knew of the iron-safe clause, made a part thereof, and of the requirements of said clause.

(3) The plaintiff kept a set of books in his business covered by said policy of insurance. He kept blotters, of original entry, in which were entered, at the time such transaction occurred, all credit sales of merchandise, made in the business covered by the policy of insurance; second, a cash book, in which was entered, at the end of each day, the total cash sales made in the business covered by the policy of insurance for that day; third, a journal, to which was daily transferred the credit sales from the blotters; fourth, a ledger, in which was posted the entries of the cash book and entries of the journal, except that the sales for the last day preceding the fire, entered on such blotters, were not transferred to the journal.

(4) The fire occurred on the 20th day of December, A. D. 1893, at about the hour of 1 o'clock a. m., damaging and partly destroying plaintiff's stock of goods covered by the policy of insurance herein sued upon.

(5) The plaintiff gave the defendant notice of the said loss, as required by the policy of insurance, and on January 26, A. D. 1894, presented to defendant proofs of loss under said policy, as required by its terms.

(6) The plaintiff kept the last inventory of his stock, taken January 15, 1893, and his ledger, his journal, and his cash book locked in a fireproof safe at night, as required by the terms of said iron-safe clause, and that said books contained a complete record of his business transacted, including all purchases and sales, both for cash and credit, except the sales on credit for the 19th day of December, A. D. 1893, the day preceding the fire, which latter sales had not been transcribed from the blotters to the journal.

(7) The plaintiff did not keep, securely locked, in a fireproof safe, at night, and at all times when said store was not actually open for business, his blotters, containing the original entries of the credit sales made in his business. That the blotters were used on the counter for daily credit sales, and six or eight were required for the year's business, but only one at a time.

(8) The blotters, covering all credit sales from the date of the inventory, in January, A. D. 1893, to the time of the fire having been left out of the safe, and on top thereof, were destroyed by the fire which destroyed the insured property.

(9) The books, as preserved through the fire, and presented to the insurance companies, and presented in evidence before the court, did not contain the credit sales for the last day's business preceding the fire, to wit, December 19, 1893, but did contain a record of all the other sales made by the plaintiff, and contained a record of all purchases made by him in his business.

(10) The plaintiff's credit sales, in his business, covered by the policy of insurance, as shown by the books saved, for the days preceding the fire, were as follows: December 18, 1893, $65; December 16, 1893, $70; December 15, 1893, $76.

(11) The plaintiff had on hand, immediately preceding the fire, property, covered by the policy of insurance, of the cash market value of $20,850.13.

(12) Plaintiff saved, of said property, $1,125 worth from destruction by fire.

(13) Plaintiff had $17,500 total concurrent insurance on said property at the time of said fire, distributed between seven insurance companies, as shown in plaintiff's original petition.

(14) At the time of said fire, plaintiff's storehouse was not actually opened for business, but had been closed for the day.

Opinion.

Defendant in error sued plaintiff in error to recover $1,500 due on a fire insurance policy. There was judgment for defendant in error. It is not denied that the fire occurred without any fault on the part of appellee, that his goods were destroyed, and that he made proofs of his loss, and fully complied with every requirement of the policy after the fire. A forfeiture is claimed, however, under the iron-safe clause in the policy. With some verbal changes, the findings of fact by the trial judge are adopted as the conclusions of fact of this court. The findings of fact show that the last inventory of the stock of goods, the ledger, journal, and cash book were locked in a fireproof safe at night, in strict compliance with the terms of the above clause, and that the books contained a complete record of the business transacted, including all purchases and sales, both for cash and on credit, except the credit sales for December 19, 1893, the day preceding the fire, which latter sales had not been transcribed from the blotter to the journal. The blotters were not locked in the safe, and were destroyed by the fire. The iron-safe clause is printed upon a slip of paper that is attached to a blank space in the policy and contains, in addition to the iron-safe and three-fourths value clause, the only...