Scottish Union & Nat'l Ins. Co v. Stubbs

• Decision Date: 10 August 1896
• Citation: 98 Ga. 754,27 S.E. 180
• Court: Georgia Supreme Court
• Parties: SCOTTISH UNION & NATIONAL INS. CO. v. STUBBS.

27 S.E. 180

98 Ga. 754

SCOTTISH UNION & NATIONAL INS. CO.

v.STUBBS.

Supreme Court of Georgia.

Aug. 10, 1896.

Insurance — Payment — Inventory — Iron-Safe Clause—Instructions.

1. There was no error in admitting in evidence in the trial of an action against an insurance company a letter addressed by the plaintiff to an adjuster of the company, stating that a certain inventory was inclosed therein, this letter being relevant, in connection with other facts, to show that such inventory was in fact inclosed and sent in the letter.

2. Nor was there any error, on such a trial, in admitting in evidence another letter from the plaintiff to the adjuster, its contents having some relevancy upon the question as to whether or not a demand for payment had been made and refused, and also upon the question of the company's good faith in the premises.

3. A correct inventory of the goods in a storehouse which had been burned, made shortly before the fire, though not made by the insured, and though the goods did not belong to him at the time the inventory was made, it having been made by the person then owning the goods for the purpose of effecting a sale to the insured, was on such trial admissible in evidence as having some relevancy concerning the extent of the loss, and could be considered by the jury in fixing the amount of the same, if, upon the whole case, they should find the company liable.

4. A clause in a fire insurance policy binding the assured to keep certain books, and to preserve them at night in an iron safe, or keep the same in some place not exposed to a fire which would destroy the building in which the business of the insured was being conducted, and stipulating that, in the event of failure to produce such books for the inspection of the company, the policy should be null and void, was a warranty on the part of the insured, and not a mere representation.

5. There being in the policy sued on a clause of the nature above indicated, and which is usually designated as the "iron-safe clause." and it being a matter of dispute as to whether this clause was rightly in the policy, or had been inserted therein by the fraud of the company's agent, it was error for the court, in charging upon the effect which should be given to this clause in case the jury should find that it constituted a part of the policy, to leave them to pass upon its immateriality, or to treat it as a merely incidental matter, to be considered by them in connection with the subject of furnishing proofs of loss.

6. For the reasons just indicated, several of the charges complained of were erroneous and misleading.

(Syllabus by the Court.)

Error from superior court, Bibb county; J. L. Hardeman, Judge.

Action by C. I. Stubbs against the Scottish Union & National Insurance Company. From a judgment for plaintiff, defendant brings error. Reversed.

Dessau & Hodges, for plaintiff in error.

Steed & Wimberly, for defendant in error.

SIMMONS, C. J. This was an action upon a policy of fire insurance on the plaintiff's stock of merchandise, consisting principally of groceries and provisions, while contained in a one-story frame, shingle-roof building occupied as a store, near Macon, Ga. The policy stated that the property was insured "subject to iron-safe clause attached"; also that it was accepted subject to such conditions as might be indorsed thereon or added thereto; and upon its face was pasted a strip of paper which bore the signature of the agents who issued the policy, and upon which was printed the iron-safe clause. This clause is in these words: "The following covenant and warranty is hereby made a part of this policy: (1) The assured shall make a complete Itemized inventory of stock on hand at...