Sowers v. Mut. Fire Ins. Co. of Des Moines, Iowa

• Decision Date: 12 April 1901
• Citation: 85 N.W. 763,113 Iowa 551
• Parties: SOWERS v. MUTUAL FIRE INS. CO. OF DES MOINES, IOWA.
• Court: Iowa Supreme Court

113 Iowa 551

85 N.W. 763

SOWERS

v.MUTUAL FIRE INS. CO. OF DES MOINES, IOWA.

Supreme Court of Iowa.

April 12, 1901.

Appeal from district court, Hamilton county; J. R. Whitaker, Judge.

Action at law on a policy of fire insurance. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. Reversed.W. C. Miller and Carr & Parker, for appellant.

George Wambach, for appellee.

DEEMER, J.

The policy was issued October 18, 1898, and the fire occurred on the 10th day of the following November. The property insured consisted of a stock of cigars, tobacco, canned and bottled goods, and confectionery, and a pool and combination pool and billiard tables. The policy contained these provisions: “The assured under this policy hereby warrants and agrees to take an inventory of the stock of merchandise covered by this policy at least once each year, and to keep a set of books showing a complete record of business transacted, including all purchases and sales, both for cash and credit, together with the last two inventories of said business; and further warrants and agrees to keep such books and inventories securely locked in a fire-proof safe at night, and at all times when the store mentioned in this policy is not actually opened for business, or in some secure place not exposed to a fire which would destroy the building where said business is carried on; and in case of loss the assured warrants and agrees to procure such books and inventories, and, in event of failure to produce the same, this policy shall be deemed null and void, and no suit or action shall be maintained thereon for any such loss. It is agreed that the provision of this policy, the application, articles of incorporation, and by-laws of the company constitute the sole contract between the assured and the company, and no statement or representation made to the assured by any agent, or any statement or representation made by the assured to any agent, shall in any manner affect this policy, except such representations be in writing, and indorsed on this policy.” It is admitted that the insured had no inventory of his stock of merchandise; that he took none after the policy was issued; that he kept no books; that he neither had a safe, nor kept any books in a safe, or at any other place; and that he produced no books or inventories after the fire, although requested to do so. It is also practically conceded that these facts avoided the policy, unless defendant, through...