Security Mut. Ins. Co. v. J. E. Woodson & Co.

• Decision Date: 04 June 1906
• Citation: 95 S.W. 481
• Parties: SECURITY MUT. INS. CO. v. J. E. WOODSON & CO.
• Court: Arkansas Supreme Court

95 S.W. 481

SECURITY MUT. INS. CO. v. J. E. WOODSON & CO.

Supreme Court of Arkansas.

June 4, 1906.

Appeal from Circuit Court, Hempstead County; Joel D. Conway, Judge.

Action by J. E. Woodson & Co. against the Security Mutual Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This is a suit on a policy of fire insurance. The property insured was a stock of general merchandise valued at $800. Furniture and fixtures including iron safe for the store and office valued at $50 and store building valued at $150. The complaint set up the contract of insurance, and alleged the loss, on the 14th of November, 1903, of the property by fire, a compliance by plaintiff with the terms of the policy, to entitle it to recover, and prayed for the amount of the policy. The answer denied all the material allegations, and alleged that the plaintiffs were bound by the by-laws, rules, and regulations of the company, it being a mutual company, and by the application which was made a part of the policy, and denied that the plaintiffs took an inventory on the day of the application as they had represented. It alleged that their goods at that time would not inventory $1,300, as stated in their application; that they did not carefully preserve their books and invoices in an iron safe, or in some place secure against fire, so that they might be secure from fire, so that they might be submitted to the adjusters, as they agreed in their application they would do; that they did not keep the last preceding inventory; that they made fraudulent representations at the time of making said application that their stock of goods was worth $1,300; that their house was worth $200, and that their store, fixtures, and safe were worth $100; that the policy contained this provision: "Loss to be paid 60 days after due and satisfactory proofs of the same shall have been made by the assured and received at the company's office in Little Rock, Ark., in accordance with the terms and provisions of this policy herein mentioned." It alleged that nothing was due and nothing payable under this policy until 60 days had elapsed after receiving proof of loss at the office in Little Rock, and that said proof of loss was not received 60 days prior to the commencement of the action. The cause was submitted to a jury, and its verdict was in favor of appellee for the amount of the policy.

Murphy, Mehaffy & Lewis, and H. M. Armistead, for appellant. Jobe & Eakin, for appellee.

WOOD, J. (after stating the facts).

1. Appellant contends that there was no proof of loss as required by the terms of the policy. But appellant denied any liability whatever, and refused to pay. "Proof of loss" therefore was waived. Greenwich Ins. Co. v. State, 74 Ark. ___, 84 S. W. 1025.

2. It is next contended that the appellee did not keep a set of books as required by the policy which contained the standard provision on that subject, and did not comply with the iron-safe clause. Such books as the appellee kept were not destroyed. The proof tended to show that a book was kept showing how many goods were received and how many were sold from the date of the issuance of the policy up to the time of the fire. What is termed in the evidence the merchandise account taken from the book kept was introduced without objection. It showed the amount of the merchandise received from the date of the issuance of the policy up to the time of the fire. It was shown that a cashbook was kept showing the amount of goods sold. It was shown that appellee lost all the goods that were not sold. It was shown that appellee kept books showing the goods that were received and the goods that were...