Scottish Union & National Ins. Co. v. Moore

• Decision Date: 08 June 1904
• Citation: 81 S.W. 573
• Parties: SCOTTISH UNION & NATIONAL INS. CO. v. MOORE.
• Court: Texas Court of Appeals

81 S.W. 573

SCOTTISH UNION & NATIONAL INS. CO. v. MOORE.

Court of Civil Appeals of Texas.

June 8, 1904.

Appeal from Milam County Court; R. B. Pool, Judge.

Action by James B. Moore against the Scottish Union & National Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Crane & Wharton, for appellant. Moore, Hearrell & Moore, for appellee.

EIDSON, J.

This is a suit brought by appellee against the appellant upon a fire insurance policy executed by appellant in favor of one Machann, and transferred by him to one Winfrey, and by Winfrey to R. Thomas, and by the said Thomas to appellee after the loss. The trial in the court below resulted in a verdict and judgment for appellee for $500, the full amount of the policy, with interest thereon at 6 per cent. from November 30, 1902. Appellant in its answer pleaded specially certain provisions of the policy sued upon, requiring the insured to file proofs of loss and to keep books as required by what is usually termed "the iron safe clause."

Appellant's second assignment of error complains of the action of the court in not directing a verdict for the defendant, upon the ground that the undisputed testimony shows that the insured failed to file any proofs of loss, and that the filing thereof was not waived. We are of the opinion that the testimony in the record tends to show that appellant denied its liability upon the policy, and thus waived the proof of loss required by the policy. Insurance Co. v. Brown, 82 Tex. 631, 18 S. W. 713; Insurance Co. v. Mattingly et al., 77 Tex. 162, 13 S. W. 1016.

Appellant's fourth assignment of error complains of the failure of the court to instruct the jury to return a verdict for the defendant, because the undisputed testimony shows that there was a failure on the part of the insured to keep the books required by the "iron safe clause"; and in its fifth assignment of error it complains of the failure of the court to instruct a verdict for the defendant, because the undisputed testimony shows that there was a breach of the iron safe clause in failing to keep the books as required, giving a complete record of all the purchases, sales, and shipments, both for cash and credit, and because there was a failure to produce the inventory taken July 12, 1902. A substantial compliance with the provision of the policy requiring books to be kept is held by the authorities to be sufficient. It appears from the testimony in the record that the policy...