Royal Insurance Co. of Liverpool v. Morgan

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, C. J.
• Citation: Royal Insurance Co. of Liverpool v. Morgan, 183 S.W. 198, 122 Ark. 243 (Ark. 1916)
• Decision Date: 24 January 1916
• Docket Number: 120
• Parties: ROYAL INSURANCE CO. OF LIVERPOOL v. MORGAN

183 S.W. 198

122 Ark. 243

ROYAL INSURANCE CO. OF LIVERPOOL v. MORGAN

No. 120

Supreme Court of Arkansas

January 24, 1916

Appeal from Ouachita Circuit Court; C. W. Smith, Judge; affirmed.

Judgment affirmed.

H. S Powell, for appellant, J. W. Warren, of counsel.

1. No inventory was taken within thirty days of issuance of policy. 52 L. R. A. 70; 85 Ark. 579; 82 Id. 476; 94 Id. 228; 65 Id. 240.

2. No books were kept as provided by the terms of the policy. 52 L R. A. 70; 65 Ark. 336; 94 Id. 228.

3. Books, bills, invoices, etc., were not produced and delivered as provided. 65 Ark. 336.

4. The policy was forfeited by false statements in proof of loss. 62 Ark. 350.

5. Policy voided by execution of deed of trust.

6. Verbal testimony not admissible to establish extent of loss. There was error in the instructions. 65 Ark. 240.

Gaughan & Sifford, for appellee.

1. Only substantial compliance with the fine print terms of insurance policies is required and that question is one of fact for the jury. Sections 4375a and 4382, Kirby's Digest. 107 Ark 170-1.

2. An inventory was taken August 25, 1913, and it complies with the policy. 82 Ark. 476; 94 Id. 228.

3. The books were properly kept. 94 Ark. 229; 79 Id. 164, 269.

4. The books etc., were presented to the adjuster.

5. There were no false and fraudulent representations in the proof of loss. "Laborantur in moutes nas cetur rediculus mus." 94 Ark. 168. The knowledge and remark of the agent was a waiver of any forfeiture. 88 Ark. 506; 65 Id. 348; 87 Id. 72; 79 Id. 475; 82 Id. 150; 111 Id. 435.

6. Verbal testimony was admissible as to the appearance of the amount of lumber on the yard just before the fire. 82 Ark. 476; 85 Id. 37. The books were also evidence and intelligible to a lumberman. 85 Ark. 37.

7. There is no error in the instructions.

OPINION

MCCULLOCH, C. J.

This is an action on a fire insurance policy issued by appellant insurance company to appellee on a stock of yellow pine lumber. The amount of the policy is $ 4,500, and it is alleged that at the time the fire occurred the stock of lumber consisted of 350,000 feet, which was all destroyed.

The verdict in appellee's favor was for the sum of $ 4,000. Appellant defended on the ground that there were various forfeitures of the policy, which will be discussed in detail later, and also that there were only 65,000 feet of lumber destroyed. There is a sharp conflict in the testimony as to the amount of lumber on hand at the time the fire occurred, the appellant having adduced proof tending to show that it was only 65,000 feet, whereas the testimony of the appellee himself and the witnesses he introduced tends to show that there was more lumber on hand than that claimed in the complaint, or about that quantity. There being a conflict in the testimony on that issue, we must treat the verdict of the jury as having settled it in appellee's favor.

The first contention is that there was a forfeiture by reason of the failure of the assured to make an inventory in accordance with the requirements of the policy, which provided that "unless an inventory has been taken within twelve calendar months prior to the date of the policy, the assured should take such inventory within thirty days of the issuance of the policy," otherwise the policy should be void. Appellee exhibited to the jury what purported to be an inventory of all the stock of lumber on hand, which said inventory, appeared to have been taken on the 25th day of August, 1913, within the thirty days after the issuance of the policy, and he testified that he took that inventory on the date named. In other words, his testimony was sufficient to warrant a finding that the inventory exhibited was taken within thirty days, and while there are some indications about the date of the inventory which might have warranted the jury in finding that it was not in fact taken at that time, yet the jury has credited the testimony of appellee and found in his favor on that issue, so we must treat the issue as settled by the verdict.

It is insisted that the inventory is not sufficient to constitute compliance with the terms of the policy, even though it was taken within thirty days. The inventory gives the dimensions of the lumber in each pile, and states the total number of feet in each pile, but it does not show in any way the dimensions of the piles, and it is contended that that is a material omission, for without that information the adjuster for the insurance company could not verify the accuracy of the items set forth. We think that it is a strained contention to say that the inventory is not sufficient on that account. Especially is that true in construing it in the light of our statute, which only requires substantial compliance with the terms of a policy.

There is one item on the inventory, however, which is not specific, as stated above, and that is an item of 40,000 feet of lumber described as being on the tram. The inventory showed 522,000 feet of lumber on hand at that time, and that part which was not itemized was only a small portion of the whole. It was shown that it was lumber lying in bulk near the tramways, which could not be conveniently measured, and we are of the opinion that the failure to itemize that small portion of the total amount of lumber does not amount to a breach of the warranty with regard to taking inventory. We have said, it is true, that a mere summary does not constitute an inventory, (Arkansas Mutual Fire Ins. Co. v. Woolverton, 82 Ark. 476, 102 S.W. 226; Arkansas Ins. Co. v. Luther, 85 Ark. 579, 109 S.W. 1022), but this is more than a summary, for it purports to give the items and the aggregate number of feet of each pile of lumber, except that portion which was lying on the trams.

It is next contended that there was a breach of the policy on account of the failure of the assured to keep a set of books showing a complete record of the business transacted "including all purchases, sales and shipments, both cash and credit, from date of inventory." Appellee exhibited books showing an itemized scale of the logs which were sawed into lumber and placed on the yards subsequent to the taking of the original inventory, but it is not contended that any record was kept of the lumber put out on the yard after the said inventory was taken. The original invoices were kept in connection with those books showing the amount of lumber sold and shipped out. The testimony shows that the rule among saw mill men is that the lumber will run on an average about 20 per cent more than the logs scale. While there were no entries showing the amount of lumber, the books showing the log scale, when considered in the light of available information concerning the average amount of lumber which will be produced according to the standard scale of logs, affords sufficient means for ascertaining the amount...