Shawnee Fire Ins. Co. v. Rowell
| Citation | 30 Okla. 466,119 P. 985,1911 OK 516 |
| Decision Date | 12 December 1911 |
| Docket Number | Case Number: 1367 |
| Parties | SHAWNEE FIRE INS. CO. v. THOMPSON & ROWELL et al. |
| Court | Supreme Court of Oklahoma |
¶0 1. INSURANCE--Promissory Warranties--Validity. A stipulation in a fire insurance policy that the insured shall make and keep inventories and a set of books and keep them in a fireproof safe at night and at all times when the building mentioned in the policy is not open for business, or, failing in this, to keep such inventories and books at night and at all such times in some place not exposed to fire which would ignite or destroy said building, and in case of loss to produce such books and inventories for the inspection of the insurer, and in the event of failure on the part of the insured to produce such books and inventories, for the inspection of the insurer, that the entire policy shall be null and void, is a reasonable and competent provision to insert and attach to the policy.
2. SAME--Promissory Warranties--Performance--"Inventory." An inventory which bunches merchandise together without itemizing same, such as, is not such an inventory as was required by the terms of the insurance policy sued on in this case.
3. SAME--Promissory Warranties--"Inventory." An inventory, in the sense used in the insurance policy sued on, means an itemized list or enumeration of property, article by article, and is not intended merely to show the gross value of the property insured, but is for the purpose of enabling the parties to ascertain the different articles which go to make up the entire stock in order that the insurance company may test the correctness of the claim for damages in two respects: First, whether the articles composing the stock belong to the class of property covered by the policy; second, whether the valuation attached to the different items is reasonable.
4. SAME--Construction--General Rules. The "three-fourths value" and "iron-safe" clauses attached to and forming a part of the contract of insurance should be interpreted according to the same rules by which other contracts are construed, and a substantial compliance therewith is sufficient. The evidence in the case examined, and held not to show a substantial compliance with said provisions.
5. SAME -- Promissory Warranties -- Inventories -- Sufficiency. The provision of a fire insurance contract which requires that the insured will keep such books and inventory securely locked in a fire-proof safe at night, etc., is a promissory warranty, and is not substantially complied with by producing an inventory made one month prior to the fire, where it is shown that the inventory made within twelve calendar months prior to the issuance of the policy had been negligently allowed to remain out of the fire-proof safe, and, together with the books, be destroyed, especially when the last inventory was not made in compliance with the terms of the policy, the goods not being itemized, but mere summaries of the amounts and values being given.
6. SAME--Promissory Warranties--Keeping of Books. Books showing "all purchases and sales, both for cash and credit" within the meaning of a warranty in a policy of insurance, requiring the insured to keep a set of books showing a complete record of business transactions including all such purchases or sales, need only be such as will show these matters to a man of ordinary intelligence, but plaintiff's Exhibit D, which was a small private pocket ledger, showing the amount of cash deposited in the bank, after deducting all expenses of the business, and covering a period of three weeks preceding the fire, is not a substantial compliance with said warranty, especially in view of the fact that the insured negligently permitted his books, including the cashbook, to remain without the fireproof safe and be destroyed by fire.
7. TRIAL--Taking Case from Jury--Demurrer to Evidence. When the evidence, with all the inferences that can be properly drawn from it, is insufficient to support a verdict, it is error to overrule a demurrer thereto.
Error from District Court, Pawnee County; L. M. Poe, Judge.
Action by Thompson & Rowell and another against the Shawnee Fire Insurance Company. Judgment for plaintiffs, and defendant brings error. Reversed, with instructions.
Crane & Crane and Fred S. Liscum, for plaintiff in error
W. L. Eagleton and Sam K. Sullivan, for defendants in error
¶1 Thompson & Rowell were engaged in the retail mercantile business at Ralston, and on October 22, 1907, secured a policy of insurance from the defendant, on their stock of merchandise, in the sum of $ 2,000, paying therefor a premium of $ 86. On October 30th, eight days thereafter, the stock was consumed by fire. In addition to the $ 2,000 policy, plaintiffs had $ 11,500 insurance on their stock, making a total of $ 13,500 insurance. After the loss, Thompson & Rowell assigned the policy, which defendant issued, to E. A. Bullock, as trustee for certain creditors. Thereafter on March 7, 1908, plaintiffs filed suit in the district court of Pawnee county against defendant on said policy, alleging that defendant, although liable for said amount, refused to pay the same or any part thereof, and that plaintiff performed all the conditions of their said contract, etc. A copy of the policy was attached to plaintiff's petition and made a part thereof.
¶2 Defendant answered, admitting the execution of the policy sued on, whereby it insured plaintiffs subject to the limitations, conditions, agreements, and warranties in said policy contained. It admitted that the property was destroyed by fire as alleged; admitted the partnership; admitted that a proof of loss was furnished; but pleaded that the policy, among other things, contained the following conditions and stipulations, known as the "three-fourths value" clause, and the "iron-safe" clause, the former in the following language, to wit:
"In consideration of the rate of premium at which this policy is written, it is a condition of this insurance that in the event of loss or damage by fire to the property described herein, this company shall not be liable for an amount greater than three-fourths of the cash market value of each item of the same, not exceeding the amount of the said policy at the time immediately preceding such loss or damage; and in the event of other insurance on the property described herein, then this company shall be liable only for its proportion, three-fourths of such cash market value at the time of the fire, other concurrent insurance permitted, but total insurance shall at no time exceed three-fourths of the value of each item of property described herein."
¶3 And the latter as follows:
¶4 The policy also contained a nonwaiver stipulation, which provided that none of the conditions of said policy could be waived by any agent, except by written agreement, attached to the policy, forming a part thereof. The answer set up the breach of these clauses, in that plaintiffs had not taken an itemized inventory of the stock covered by the policy within the twelve calendar months prior to the date of the policy, and that they had not taken one within thirty days after said date, and that insured had not kept a set of books which clearly and plainly presented a complete record of the business transactions, including all purchases and sales and shipments of all such stock, both cash and credit, from the date of the inventory, for which said policy provided, and during the continuance thereof; that they kept no books or records of all purchases made by them; that they kept no record of sales and shipments of such stock, either for cash or credit, from the date of the inventory, during the continuance of said policy. The answer also...
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