Pelican Insurance Company v. Wilkerson

Citation13 S.W. 1103,53 Ark. 353
PartiesPELICAN INSURANCE COMPANY v. WILKERSON
Decision Date07 June 1890
CourtSupreme Court of Arkansas

APPEAL from Craighead Circuit Court, Jonesboro District, J. E RIDDICK, Judge.

Judgment reversed and cause remanded.

E. F Brown for appellant.

1. The "iron safe clause" was a warranty, and not merely a representation, and must be strictly complied with, or the policy is void. Wood on Ins., secs. 192, 179, 190; May on Ins., 1 and 2, secs. 156, 183, 179, 157, 184.

Warranties must be true, whether material or not, ubi supra.

2. The assured did not comply with said clause. He did not keep such a record of his business as the clause required. Appellee was not only required to keep the last inventory till the fire and presentation to the adjuster, but was required to keep and present same when called for by the company till the losses were ascertained and settlement made, because it is a material feature of the contract furnishing the best evidence of the extent of the loss and measure of appellant's liability. 1 Wood on Ins., p. 523.

Parol evidence of the contents of the original purchase bills was not admissible without a proper showing, which was not made in this case. Wood, sec. 449.

The books kept did not show all business transacted, etc., nor were they even intelligible, and this avoids the policy.

J. C Hawthorne for appellee.

It was not necessary for appellee to produce in court the last inventory and invoices and his books. They were presented to the adjuster, and he refused to pay, solely upon the ground that appellee Wilkerson had burned his own house, which in law was a waiver of the conditions requiring proof of loss to be made. Wood on Ins., 982, note 1; 30 N.W. 585.

Appellant having waived the production of the preliminary proof, by allowing appellee, without objection, to prove the loss and extent of damages, could not require it upon the trial. May on Ins., sec. 472; 50 N.Y. 657; 14 Wis. 318.

2. The evidence was sufficient to sustain the verdict. The loss was admitted--the proof showed the goods to be worth $ 1,800.00 and from the books kept an accountant could ascertain the stock on hand at the date of the fire. The books, inventories, etc., were submitted to a jury, and they found for appellee, and their verdict should not be disturbed.

OPINION

HUGHES, J.

Appellee insured in the appellant company a stock of goods for $ 1,000.00, which was destroyed by fire, and he brought suit against the company alleging that he kept and performed all the requirements and conditions of the policy of insurance by said company issued to him. The answer admits the first paragraph in said complaint, but denies that appellee had kept, observed and performed all the requirements and conditions contained in said policy; and alleged specifically that it was a condition in said policy, in the "iron safe clause," that the assured should keep a set of books showing a record of all business transacted, including purchases and sales for cash and on credit, together with the last inventory taken of said business, and keep said books and inventory locked in a fire-proof safe at night, and, at all times when the store was open for business, in some secure place not exposed to fire which would destroy the storehouse or house of business; and should produce such books and inventory, and, in the event of failure to produce the same, the policy should be void; and appellant denied that he had performed this condition in said policy of insurance.

The policy bore date November 9, 1887, and continued for one year. The fire occurred May 25, 1888. Appellee took inventories of his stock in November and December, 1887, and one in April, 1888, and exhibited them to the adjuster of the company ten days after the fire, and they were afterwards lost. These were not produced at the trial, but their contents were proven by oral testimony. Appellant contends that appellee was not only required to keep the last inventory till the fire and presentation of the same to the adjuster, but was required to keep and present the same when called for by the company till losses were ascertained and settlement made, because it is a material feature of the contract furnishing the best evidence of the extent of the loss and measure of appellant's liability.

Upon this phase of the case, the court gave the following instruction: "If the plaintiff kept the books and inventory as required by 'iron safe clause' in policy, and after the fire produced them to the agent of defendant's company authorized to settle losses, and since that time either of said books or inventory has been lost or destroyed without the fault or negligence of plaintiff, the failure to produce said books or inventory in court under such circumstances. would not prevent recovery of plaintiff if proof is sufficient in other respects." The appellant contends that this was error.

It was entirely competent for the appellee to satisfy the jury of the extent of his loss by other legal testimony, it...

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