Southern Ins. Co. v. Parker

• Decision Date: 19 October 1895
• Citation: 32 S.W. 507
• Parties: SOUTHERN INS. CO. v. PARKER.
• Court: Arkansas Supreme Court

32 S.W. 507

SOUTHERN INS. CO. v. PARKER.

Supreme Court of Arkansas.

October 19, 1895.

Appeal from circuit court, Jefferson county; John M. Elliott, Judge.

Action by James M. Parker against the Southern Insurance Company on a policy of insurance. Plaintiff had judgment, and defendant appeals. Reversed.

This is an action at law upon a policy of insurance upon certain personal property against loss by fire. The portions of such policy material for us to consider are as follows: "The Southern Insurance Company, of New Orleans, in consideration of the stipulations herein named, and of fifty dollars premium, does insure J. M. Parker for the term of one year from the 4th of Jany., 1892, to the 4th of Jany., 1893, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding two thousand dollars, to the following described property, while located as described herein, to wit: $1,000 on his stock of wines, liquors, tobaccos, etc.; $1,000 on his bar furniture and fixtures, glassware in chests, tables, chairs, and carpet. * * * This insurance is subject to the condition of the iron-safe and three-fourth value clauses, as per printed form attached to and made part of this policy." The iron-safe clause referred to is as follows: "The assured under this policy hereby covenants and warrants to keep a set of books, showing a complete record of business transacted, including all purchases and sales (cash sales need not be itemized except by daily totals), together with the last inventory of said business; and further consents and agrees to keep such books and inventory securely locked in a fireproof safe at night, and at all times when the store mentioned in the within policy is not actually open for business, or in some secure place not exposed to a fire which would destroy the house where said business is carried on; and, in case of loss, whether the store be open for business or not, the assured warrants and covenants to produce such books and inventory, and in the event of a failure to produce the same this policy shall be deemed null and void, and no suit or action at law shall be maintained thereon for any such loss." The answer of the defendant admitted the execution of the policy, and the loss of the property by fire, but it denied that the plaintiff had duly fulfilled the conditions of said policy, and specially pleaded a failure to comply with the conditions above set out, and alleged that, by reason of such failure, the policy was void. It also denied that the plaintiff was the sole and unconditional owner of the property, alleged that it was incumbered by mortgage, contrary to the conditions of the policy, and that the same was void for that reason also. On the trial of the case, the appellee, Parker, and his bookkeeper, testified, in substance: That appellee was engaged in the hotel business and "run" a saloon in connection therewith. That the property insured was the stock of wines, liquors, etc., kept in the saloon, and also the furniture and fixtures therein. That a complete set of books were kept, as required by the policy, but that the accounts of the hotel and saloon were kept in the same books. The hotel was kept open night and day, and the saloon, also, kept open all the time, except on Sundays. The books were not kept in a safe, but under the counter. They were not placed in the safe oftener than about once a month. The books were posted each night by the bookkeeper and were then left underneath the counter. The reason given for not placing them in the safe was that they were needed that customers might settle their accounts. The hotel, saloon, furniture, and stock of wines and liquors were destroyed by fire on the 16th of August, 1892, about 11 o'clock at night. On the night of the fire the bookkeeper had posted the books and gone to bed, leaving the books, as usual, under the counter. A night clerk was left in charge of the hotel and saloon. In the confusion caused by the fire, and because his first duty was to arouse the sleeping inmates of the hotel, he overlooked the books, and they were destroyed by the fire that burned the hotel. There was a verdict and judgment in favor of plaintiff. A motion for new trial being overruled, an appeal was taken.

Austin & Taylor, for appellant. N. T. White, for appellee.

RIDDICK, J. (after stating the facts).

We do not find that there was a mortgage on the property insured. The ruling of the circuit court in regard to the contention of appellant on that point seems to us correct, and we pass it without discussion. The main question to consider is whether the appellee, Parker, violated the clause in his policy by which he agreed to keep a set of books showing a complete record of all business transacted, and to keep such books "in a fireproof safe at night, and at all times when the store mentioned in the policy was not actually open for business," or in some secure place not exposed to a fire which would destroy the house where the business was carried on, and, in case of loss, to produce such books. The proof shows that he kept the books mentioned in the policy, but he admits that he did not keep them in a fireproof safe, either by day or night, nor in any secure place not exposed to fire. As a result of this failure to keep the books in a fireproof safe at night, they were destroyed by the fire that burned the house in which the business was carried on. Appellee attempts to avoid the effect of failing to keep the books in a safe at night, as required...