Security Mut. Ins. Co. v. Berry

• Decision Date: 03 December 1906
• Citation: 98 S.W. 693
• Parties: SECURITY MUT. INS. CO. v. BERRY.
• Court: Arkansas Supreme Court

98 S.W. 693

SECURITY MUT. INS. CO. v. BERRY.

Supreme Court of Arkansas.

December 3, 1906.

On Rehearing, December 24, 1906.

Appeal from Circuit Court, Ashley County; Z. T. Wood, Judge.

Action by G. R. Berry against the Security Mutual Insurance Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Mehaffey & Armistead, for appellant. Pugh & Wiley and T. M. Hooker, for appellee.

HILL, C. J.

This was an action on a fire insurance policy. Appellant presents two matters which it alleges should bar recovery.

1. It is claimed that the iron-safe clause was not complied with, in that the book containing the credit sales was lost in the fire. It was shown, however, by appellee that said credit sales were a small part of the business, and they were entered on a day book (the one lost) and transferred or copied into another book, which was preserved and presented for inspection. Appellant refers to the doctrine that there must be a strict compliance with this clause in order for the insured to recover, and cite its statement and the authorities to sustain it in 19 Cyc. p. 761, and its application in Assurance Co. v. Altheimer, 58 Ark. 565, 25 S. W. 1067, and Ins. Co. v. Wilkerson, 53 Ark. 353, 13 S. W. 1103.

Undoubtedly this was the law in this state until the passage of the act of 1899 (Kirby's Dig. § 4375a), which renders substantial compliance with the terms, conditions, and warranties in fire insurance policies on personal property sufficient. Counsel, of course, admit the statute changes the force of the former decisions, but contend that "it excuses technical and nonessential details of performance, but it interprets itself as preserving the substance." It cannot be presumed that the former decisions of this court and the current of authority held a policy void for noncompliance with "technical and nonessential details of performance." Necessarily the act was intended to reach beyond such matters, and to establish the rule that a substantial, as contradistinguished from a strict, compliance, answered the justice of the requirement. See Peoples' Fire Ins. Co. v. Gorham (Ark.) 95 S. W. 152; Security Mut. Ins. Co. v. Woodson, 95 S. W. 481. The court submitted under proper instructions the question of substantial compliance to the jury and the verdict has sufficient evidence to support it.

2. The application contained these questions thus answered: "31. Loss. Have you ever suffered loss by fire? When, and, if then insured, in what company? Yes. Security Mutual Ins. Co. How did it originate?" It was developed on the trial that a former stock of goods of appellee insured in appellant company had been destroyed by fire, and also that prior to coming to Arkansas appellee's residence in Delhi, La., had been destroyed by fire. Whether the residence was insured in appellant company, or insured at all, was not shown. The answers to the fourfold interrogatory 31 were incomplete, but so far as they went were not false.

The Supreme Court of the United States said in regard to a similar answer: "But where upon the face of the application a question appears to be not answered at all, or to be imperfectly answered, and the insurers issue a policy without further inquiry, they...