Roberts, Willis & Taylor Co. v. Sun Mutual Ins. Co.

• Decision Date: 25 June 1898
• Parties: ROBERTS, WILLIS & TAYLOR CO. et al. v. SUN MUTUAL INS. CO. et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

48 S.W. 559

ROBERTS, WILLIS & TAYLOR CO. et al. v. SUN MUTUAL INS. CO. et al.¹

Court of Civil Appeals of Texas.

June 25, 1898.

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

Consolidated action by the Roberts, Willis & Taylor Company and others against the Sun Mutual Insurance Company and another. There was a judgment for plaintiffs as against the Sun Mutual Insurance Company only, and plaintiffs appealed. Affirmed.

This suit was brought by appellants on two policies issued to Burge & Allen,—one by the Sun Mutual Insurance Company for $1,000, $400 of which was on the building, $500 on merchandise contained in said building, and $100 on store fixtures; the other policy by the Lancashire Insurance Company for $1,500 on the same merchandise contained in said building. The building and merchandise were destroyed by fire while both policies were in force, and appellants became the owners of said policies by regular transfer. There was no objection made to the two policies being embraced in the same suit. The defendants pleaded a failure on the part of the assured to comply with a clause contained in the policies, known as the "iron-safe clause." Plaintiffs, by supplemental petition, denied that the said iron-safe clause was a warranty, but alleged that it was only a representation, and alleged a full compliance with all of the terms of the policies, and also pleaded, in the alternative, that, if there had been any violation of the provisions of said policies, the same had been waived by the adjuster; setting out how such waiver was effected, etc. The case was submitted on special issues to the jury, and, on their answers being returned, judgment was rendered for plaintiffs against the Sun Mutual Insurance Company for $620.50 (being the value of the house and fixtures), and that the Lancashire Insurance Company go hence without day.

Conclusions of Fact.

We adopt the following statement of the facts, taken from appellants' brief, namely:

"It was proved on the trial that Burge & Allen were a firm composed as alleged; the execution and delivery of the policies; that the policy of the Sun Mutual contained clause permitting only $1,200 additional insurance; that $1,500 was taken; that F. J. Abernathy was agent of both companies, had written the policy in the Sun Mutual, and that his attention was called to the $1,200 only being allowed; and that he replied it was all right, and wrote the one in the Lancashire for $1,500. It was proved: That Burge & Allen owned the house and stock of merchandise insured at date of policies and at time of the fire. That the fire occurred on the night of November 25, 1892, between hours of 1 and 3 o'clock, and that the house and stock of merchandise were totally destroyed. That on March 1, 1892, they took a complete inventory of all their stock of merchandise; setting out the various articles, the amount of each, and price, with extensions and footings. That this was lost in the fire. That, when this itemized inventory was made, they entered in a book where they kept a record of post-office business and their individual business the following:

                Dry goods, boots, shoes, and clothing  $1,210 00
                Groceries and hardware...............     800 00
                Drugs and medicines..................     420 00
                Jewelry .............................     350 00
                Books and stationery ................     100 00
                Fixtures ............................     158 45
                                                      __________
                                                       $3,038 45
                

"That this was the last inventory taken by Burge & Allen. That during all the time they were in business they kept a set of books, consisting of blotters of original entries of each sale, whether for cash or credit, ledgers in which credit sales were posted, and cash books to which each cash sale was posted. They also kept invoices of their purchases, and also a book in which they posted each invoice as received, the total of the invoice, and name of the party from whom purchased."

The following written agreement was read in evidence: "Ector, Dec. 15, 1892. We, the undersigned, W. R. Allen and J. T. Burge, consisting of the firm of Allen & Burge, of Ector, Fannin Co., Texas, have requested C. H. Langdeau, adjuster for the Lancashire Ins. Co., of England, and the Sun Mutual Ins. Co., of New Orleans, to make examination of our books, invoices, and other data, to determine, if possible, the probable loss and damage we may have sustained by reason of fire of Nov. 25, 1892, destroying our property; and we hereby agree that such examination and investigation shall not act or be taken as any waiver, direct or implied, of any defense the companies may have or claim by reason of the breach of warranty as contained in the iron-safe clause made a part of the policies; we having lost our detailed inventory, and only having a memorandum of the account. [Signed] Burge & Allen."

The jury made the following findings of fact (only giving the question when necessary to explain the answer): "To first, they answer that C. H. Langdeau did have authority to settle with Burge & Allen, and did have authority to waive the iron-safe clause. The second question was as to whether Langdeau knew before the written agreement was signed by Burge & Allen that any of the books of Burge & Allen had been destroyed by fire, and whether he knew at that time whether the books preserved showed all of the credit sales prior to August 1, 1892, and when Langdeau first learned of the destruction of any of Burge & Allen's books, and how did he learn? To which they answer: `We find, by a written agreement signed by Burge & Allen, December 15, 1892, that the book of inventory was destroyed by fire. We find that Langdeau did not know at that time that the books preserved by Burge & Allen showed all the credit sales prior to August 1, 1892. Langdeau first learned of the destruction of Burge & Allen's books December 15, 1892, by information from Burge & Allen.' The third question was as to whether Langdeau had fixed any amount as the amount of loss after an investigation. They find that Langdeau did approximate the sum of $1,003.28. To fourth question, they find that Burge & Allen did not fix any amount at that time. To fifth question, they say that Langdeau and Burge & Allen did not fix any amount. To the sixth question, they find that there was a disagreement between Langdeau and Burge & Allen, and also between Langdeau, Cullers & Henry, and Roberts, Willis & Taylor Company (as to the amount of loss), and the matter was deferred by said parties for further investigation and determination. To the seventh question, they say: `We believe that Langdeau did inform Burge & Allen and Cullers & Henry and Roberts, Willis & Taylor Company that the estimate that he had made of the loss was as close as he could come at it until further data were procured. It was after Langdeau found that part of the books were destroyed by fire.' The eighth question is: `Did the said Langdeau intend to waive any stipulation or condition of the policy when he undertook to investigate the amount of loss?' To which they answer: `We find from the written agreement that Langdeau did not waive any stipulation or condition when he undertook an investigation of the amount of loss.' To the ninth they answer: `The insurance companies did not intend to waive any stipulation or condition of their policies.' To the tenth they answer: `Yes; the said Langdeau did lead the plaintiffs to believe that the said companies would waive the iron-safe clause in said policies, in reference to the production of the books. His conduct was of such a nature as to lead a man of ordinary prudence to believe that the said companies waived said iron-safe clause. We say that the plaintiffs were put to some expense and trouble in getting up duplicate invoices.' To the eleventh they answer: `Langdeau did not tell Burge & Allen that the insurance companies would waive any breach of the policies that might exist by reason of any failure on the part of Burge & Allen to observe the iron-safe clause.' To the twelfth they answer: `We find that Langdeau did tell Burge & Allen that he would report the loss to the companies, and they would determine what action they would take in the matter.' To the thirteenth they answer: `We say that Burge & Allen, and the parties to whom they assigned their policies, were to some expense and trouble in obtaining the said duplicate invoices, in the belief that by so doing the said Langdeau did waive the iron-safe clause.' To the fourteenth they answer: `We find that Langdeau was informed by George Henry, of the firm of Cullers & Henry, that the duplicate invoices had been gotten up. This was before the suit was filed.' The court in the fifteenth question submitted to the jury to answer as to what the word `inventory' in the iron-safe clause meant, in the following words: `At the time of the issuance of said insurance policies, what was generally understood among merchants and in business circles by the word "inventory," that is, was said word "inventory" generally understood among merchants and in business circles to mean an itemized list of the articles composing a stock of merchandise, with the prices of...