Royal Ins. Co. v. Okasaki
| Decision Date | 20 May 1915 |
| Docket Number | (No. 451.) |
| Citation | 177 S.W. 200 |
| Parties | ROYAL INS. CO., Limited, v. OKASAKI. |
| Court | Texas Court of Appeals |
Insurance Company, Limited. Judgment for the plaintiff, and defendant brings error. Reversed and remanded.
Thompson, Knight, Baker & Harris and W. C. Thompson, all of Dallas, for plaintiff in error. Gill, Jones & Tyler, of Houston, for defendant in error.
This suit was begun by a petition filed October 9, 1912, by T. B. Okasaki, plaintiff, against defendant, the Royal Insurance Company, Limited, a foreign corporation doing an insurance business in this state, wherein it is alleged that on September 12, 1911, plaintiff was the owner of a stock of Japanese art goods situated at 715 Main street, Houston, Tex., and that on the same date and thereafter, on September 22, 1911, defendant, for premiums paid, issued policies of insurance, Nos. 2539 and 2535, to plaintiff against loss of said stock of goods by fire, each in the sum of $2,500, and each extending for one year; that at the times of the issuance of the policies and at all times, the stock insured was of the value of $9,087.57, and that plaintiff was the owner; that on May 9, 1912, the stock was totally destroyed by fire; that plaintiff performed all of the conditions of the policies and made proof of loss, etc., and demanded payment; that defendant denied liability; that a clause in the policy sued on is to the effect that the defendant shall not be liable under said policies for a greater portion of any loss on said stock of goods than the amount of insurance represented by said policy shall bear to the whole insurance; that the insurance carried in addition to the policy sued on was a policy in the Phœnix Assurance Company, Limited, in the sum of $2,500, and a policy in the Alliance Insurance Company in the sum of $2,500; that by reason of the facts alleged, defendant became liable to him under each of said policies in the sum of $2,271.89, totaling a liability of $4,543.78, with interest.
The defendant answered by general demurrer and special exceptions, general denial and further, that the policies sued on contained a provision known as the record warranty clause, wherein the assured agreed to take an itemized inventory of stock on hand at least once each calendar year, and within 12 months of the last preceding inventory if such had been taken, unless such inventory had been taken within 12 calendar months prior to the date of the policies, which provision in the policy defendant says plaintiff failed to observe, and that plaintiff failed to make and prepare in the regular course of business a set of books clearly and plainly presenting a complete record of business transacted as provided by section 2 of said clause, and failed to keep the inventories as required by section 1 of said clause, and present same after the fire, in so far as any of same had been taken, and failed to keep and after the fire present the books containing complete record of business transacted, in so far as same had been prepared, in accordance with section 3 of said clause. That in consequence of said failures to comply with said warranty clause, the policy became void.
Plaintiff filed supplemental petition, containing exception and general denial; denial that he had failed to comply with the record warranty clause; alleged compliance in all particulars; had made and preserved all inventories and books required, and established the actual loss by reason of the fire; that the books and inventories kept by him were kept in the fireproof safe at night and when his store was not open for business and that all had been tendered to defendant for examination, and tendered in court; and alleged in the alternative, that if the books and inventories were not kept in an iron safe or other secure place that any left out and exposed on the night of the fire were exposed inadvertently, and without intention to fail to preserve same, and that if any were destroyed or injured in the fire, defendant was not thereby injured; that the full intent and purpose of the provisions of the policy were complied with; that the fire originated in another building than that of plaintiff, and through no fault of his; that his stock of goods was completely destroyed by fire. The court submitted the case to the jury on special issues, and on return of verdict rendered judgment for plaintiff for the sum of $4,468.78 principal, and $201.19 interest. Motion for new trial was overruled. Notice of appeal given, ordered that the original inventory (Exhibit F) be sent up with the record. Case brought up by writ of error.
Appellant's first assignment of error complains of the refusal of the court to give a peremptory instruction in defendant's favor, except as to premiums tendered, and undertake to support said assignments by four propositions, to the effect: First, that where an insurance company stipulates that a complete itemized inventory of stock on hand shall be taken within 30 days after the issuance of the policy, unless one has been taken within 12 calendar months prior thereto, or the policy shall be null and void thereafter, the policy ceases at the end of the 30 days where the stipulation has not been complied with; second, where the policy contains a stipulation for the keeping, preservation, and presentation of inventories of stock taken during the current year and all those taken during the preceding calendar year which were on hand when the policy issued, to be kept securely locked in a fireproof safe at night, and where the undisputed evidence shows that the inventories relied on by plaintiff were not so kept, preserved, or produced, plaintiff should not recover; third, where the policy stipulated that the assured should keep, preserve, and present all inventories taken after the issuance of the policy securely locked in a fireproof safe at night and at all times when the building mentioned in the policy was not open for business, and the undisputed evidence shows that such inventory was left out of the safe, burned and destroyed, the fire occurring at night, plaintiff should not recover; fourth, a like provision that assured would make, preserve, and present certain books called for and which the undisputed evidence shows was not complied with,...
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