Rives v. Fire Ass'n of Philadelphia

• Decision Date: 28 November 1903
• Citation: 77 S.W. 424
• Parties: RIVES v. FIRE ASS'N OF PHILADELPHIA.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

77 S.W. 424

RIVES v. FIRE ASS'N OF PHILADELPHIA.^*

Court of Civil Appeals of Texas.

November 28, 1903.

Appeal from District Court, Marion County; J. M. Talbot, Judge.

Suit by Herbert Rives against the Fire Association of Philadelphia. From a judgment in favor of defendant, plaintiff appeals. Affirmed, and motion for rehearing overruled.

W. T. Armistead and F. H. Prendergast, for appellant. Finley & Knight and Crane, Greer & Wharton, for appellee.

BOOKHOUT, J.

H. Rives, as plaintiff, instituted this suit against the Fire Association of Philadelphia in the district court on May 27, 1902, to recover judgment on a fire insurance policy for $1,500. A trial was had, and the court instructed a verdict for defendant. Judgment was accordingly so entered, and plaintiff appealed.

On the 27th day of December, 1901, the Fire Association of Philadelphia issued to H. Rives its policy of insurance for the sum of $1,500, by which it insured against direct loss or damage by fire cotton in bales owned or held by the said Herbert Rives, in trust or on commission, or on joint account with others, while contained in the warehouse at 107-108, Block 17, Soda street, Jefferson, Tex. On February 13, 1902, while said policy was in force, 327 bales of cotton contained in said warehouse were destroyed by fire. Seventy-six bales were held on joint account for D. C. Wise and Rives, the appellant. Ten bales were held on joint account for Rives & Sherrill. Fourteen bales were held on joint account for Rives & Hudson. One hundred and eighteen bales were held on joint account for Rives & Segal. One hundred and nine bales held in trust for other parties, whose names are set out in the petition. The policy contained the following provision:

"And it is understood and agreed to be a condition of this insurance, that only actual payment by cash, check or otherwise, together with the passing of a written delivery order and a transfer to purchaser named on books to be kept for that purpose by the management of the compress, warehouse or yard where said cotton is stored, shall constitute delivery of cotton purchased from seller to buyer; and it is further agreed that tickets, checks or receipts for cotton deliverable to bearer shall not be considered full evidence of ownership; but must be verified by written delivery order and transfer on books as hereinbefore provided.

"And it is understood and agreed that the basis for adjustment of any claim for loss or damage to the property covered by this policy shall not exceed the actual cash market value of such property at the time of the loss and at the place of the fire, which cash market value shall in no event be greater than it would then and there cost to replace the property damaged or destroyed with property of the same kind and quality. And it is further understood and agreed that if at the time of fire the whole amount of the insurance on the property covered by this policy shall be less than the actual cash market value thereof, this company shall, in case of loss or damage, be liable for such portion only of the loss or damage as the amount insured by this policy shall bear to the actual cash market value of such property at the time and place of fire.

"And the assured under this policy hereby covenants and agrees to keep a set of books showing a complete daily record of the date at which each bale of cotton covered under this policy was purchased or received, from whom purchased or received, in what compress, warehouse or yard stored, together with the original tag number or mark thereon, with its weight and classification, and a complete daily record of all shipments or sales, showing to whom shipped or sold, with date of shipment, from the warehouse, compress or yard so shipped, and the original number of marks, weight and classification of each bale, and in case of loss the assured agrees and covenants to produce such books and records, and in event of failure to produce the same, this policy shall be null and void."

The defendant, in its answer, set up this provision of the policy, and alleged the failure on the part of the assured to comply therewith, and that "the plaintiff did not keep any books or records showing a complete daily record of the date at which each bale of cotton covered under this policy was purchased or received, in what compress, warehouse, or yard stored, together with the original tag number or mark thereon, with its weight and classification. Nor did he keep any books or record showing a complete daily record of all shipments or sales, or showing to whom shipped or sold, with date of shipment, or from what warehouse, compress, or yard shipped, and the original tag number or marks, weight, and classification of each bale; nor did he keep any of the books and records mentioned in said contract. And defendant would further show that the plaintiff wholly failed and refused to produce any of said books and records above mentioned, containing the data and facts above mentioned, though the production thereof has been duly demanded by this defendant, since the fire destroyed said cotton." On the issue thus presented, the plaintiff testified: "I kept two books—a receipt book, and an insurance and shipping book. The receipt book would show every bale of cotton that came into the warehouse. It would be an exact duplicate of the receipts that were given out. In fact, the receipt given out to the man buying the cotton was the original, and the one in the book was the carbon copy made by putting the carbon under the top one. The carbon copy remained in the book. The insurance book showed the date the cotton came in, the number of bales, and who owned it. Nothing but insured cotton went into this book. It was a complete list of all the insured cotton. The shipping book showed all the cotton that went out. The numbers of the bales would show whether the cotton that went out was insured or not. If it was insured, I canceled the insurance. This cotton was average grade, and such cotton the date of the fire was worth in Jefferson seven and three-fourths cents per pound. Rives & Segal had 118 bales there. Wise & Rives had 76 bales there. Rives & Hudson had 14 bales there. Rives & Sherrill had 10 bales. I held 109 bales in trust for other people, which was insured. When any of that cotton would come in, I would mark on the books, `Insured,' and mark same on their receipts, and enter it on the insurance books. I do not know what caused the fire. Whenever cotton would be shipped, I would mark on my shipping book the bales that were shipped; and, if I knew to whom they were shipped, I also marked that on my book. Sometimes I would not know to whom the cotton would be shipped, but I always knew to whom the cotton held on joint account was shipped, and so marked it on the books. I kept my own books. I had my office in the warehouse. The warehouse was a brick house, with a wooden partition. I had an iron safe in the office—a pretty fair fireproof safe. Sometimes I kept my books in the safe, but not all the time. I often left them out on the safe or on the table. Nearly half the time. I didn't know I was leaving them out the night of the fire. I never thought of it. Some of the papers in the safe were scorched by the fire. The insurance book showed the date received, the name of the party who put it there, and the warehouse mark for the particular lot of cotton—the ticket number of the bale. Then, when it was shipped, it would be...