Security Mutual Insurance Co. v. Woodson

• Decision Date: 04 June 1906
• Parties: SECURITY MUTUAL INSURANCE COMPANY v. WOODSON
• Court: Arkansas Supreme Court

95 S.W. 481

79 Ark. 266

SECURITY MUTUAL INSURANCE COMPANY v. WOODSON

Supreme Court of Arkansas

June 4, 1906

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

STATEMENT BY THE COURT.

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; alleged that their goods at that time would not inventory $ 1,300, as stated in their application; alleged 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 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 sixty 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;" alleged that nothing was due and nothing payable under this policy until sixty days had elapsed after receiving proof of loss at the office in Little Rock, and that said proof of loss was not received sixty 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.

Judgment affirmed.

Mehaffy & Armistead, for appellant.

1. The policy is void because the proof of loss required by its terms is not shown to have been given within the required time or at any time. The condition is a reasonable one that proof of loss be furnished within sixty days from the date of loss. 72 Ark.

2. It is void because the insured did not keep a set of books as provided for in the policy. 53 Ark. 355; 7 Vroom, 35; 65 Ark 241.

3. It is also void because the interest of the insured in the property for which they claim a recovery is not sole and unconditional. The soliciting agent is not shown to have had authority to waive the warranty that appellees were the sole owners. A question of waiver is always a question for the jury. 62 Ark. 43. A false representation as to the ownership of the property insured avoids the whole policy. 63 Ark. 187.

Jobe & Eakin, for appellees.

OPINION

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. 72, 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 cash book 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...