St. Landry Wholesale Mercantile Co., Ltd. v. New Hampshire Fire Ins. Co. of Manchester

• Decision Date: 16 January 1905
• Docket Number: 15,248
• Citation: 114 La. 146,38 So. 87
• Court: Louisiana Supreme Court
• Parties: ST. LANDRY WHOLESALE MERCANTILE CO., Limited, v. NEW HAMPSHIRE FIRE INS. CO. OF MANCHESTER, N. H

38 So. 87

114 La. 146

ST. LANDRY WHOLESALE MERCANTILE CO., Limited, v. NEW HAMPSHIRE FIRE INS. CO. OF MANCHESTER, N. H

No. 15,248

Supreme Court of Louisiana

January 16, 1905

Rehearing denied February 27, 1905.

Appeal from Sixteenth Judicial District Court, Parish of St. Landry Edward Taylor Lewis, Judge.

Action by the St. Landry Wholesale Mercantile Company, Limited against the New Hampshire Fire Insurance Company of Manchester, N. H. From the judgment, both plaintiff and defendant appeal. Reversed in part.

John F Tobin, Edward Benjamin Du Buisson, and Ivy Green Kittredge, for appellant.

Lewis & Lewis, for appellee.

OPINION

MONROE, J.

Statement.

On December 11, 1902, defendant, in consideration of a single premium, paid, and to be paid, for the whole, issued its fire policy in an amount "not exceeding $ 2,500" on plaintiff's "stock of general merchandise * * * while kept in the one-story, frame, composition roof building" situated in the town of Opelousas, and "on the above-described building," the amount placed on the stock being $ 1,000 and on the building $ 1,500; the whole, subject to the following, among other, conditions:

(1) That the entire policy should be void unless otherwise provided by agreement, indorsed thereon, or attached thereto, "if the subject of the insurance be a building on ground not owned by the insured in fee simple."

(2) That said policy should be null and void unless the "assured should take an inventory of the stock on hand at least once in each calendar year," and, unless such inventory should have been taken within 12 months prior thereto, should take one within 30 days after the date of the policy, and thereafter keep it, with the commercial books of the assured, "securely locked in a fireproof safe at all times when the building mentioned" in the policy should not be actually open for business, or else should keep such books and inventory in some place not exposed to a fire which would destroy the building.

(3) That the assured should furnish sworn proof of loss within 60 days after the fire.

Plaintiff sued originally on the policy, which was annexed to the petition, to recover as for a total loss, but, after an exception of prematurity of action had been filed, was allowed to amend by alleging a waiver of the condition requiring proof of loss. Defendant, for answer, denies liability on the ground that plaintiff failed, in the respects mentioned, to comply with its obligations under the contract.

It is not asserted that the inventory called for by the contract was made within 30 days after the issuance of the policy, nor that the plaintiff was ignorant of its obligation in the premises, nor that there was any waiver with respect thereto on the part of the defendant.

It is not asserted that the plaintiff at any time owned the land upon which the insured building stood, the fact being that it belonged to a member and stockholder of the plaintiff corporation, and was occupied by the latter under a lease, and the position of the plaintiff with reference to the matter being that defendant's local agent was aware of the fact when the policy was issued, and that his knowledge was the knowledge of the defendant. The proof does not sustain this position. The proof of loss is said to have been waived, and considerable testimony was taken with a view to establishing the facts relied on as supporting that contention. In view, however, of the conclusion reached upon the other issues presented, this question need not be here considered.

There was judgment in the district court in favor of plaintiff with respect to the insurance on the building, and in favor of defendant as to insurance on the merchandise, and both plaintiff and defendant have appealed.

Opinion.

Plaintiff's counsel argue that the "iron-safe clause," in so far as it relates to the inventory, was sufficiently complied with, in that a projet of an inventory had been prepared, and a summary thereof entered in the books, and in that an inventory approximately complete can now be made from the books; it being conceded that the projet referred to was not intended to subserve the purpose of the inventory called for by the contract, that it was not kept in a safe or a safe place, and that it was destroyed by fire with the property insured. The iron-safe clause is typewritten, with the description and valuation of the property insured, upon a separate piece of paper, which is attached to the face, and is the most conspicuous feature, of the policy. That clause, in its first paragraph, reads: "The following covenant and warranty is hereby made part of this policy." The next paragraph provides that "the policy * * * shall be null and void if an inventory be not made within thirty days," (unless one had been made within 12 months preceding). The next paragraph provides that the assured shall "keep a set of books," etc.; the next, that "the assured will keep such books and inventory * * * securely locked in a fireproof safe at night," etc.; and the final paragraph reads:

"In the event of failure to produce such set of books and inventory for the inspection of this company, this policy shall become null and void, and such failure shall constitute a perpetual bar to any recovery thereon." (Italics by the court.)

It would, of course, have been competent for the parties to have made some other contract. They might, for instance, have agreed to dispense with an inventory, and rely on the books or they might have agreed that the failure of the assured to make, preserve, and produce the inventory should entail no other consequence than the avoidance of the contract in so far as it related to the merchandise. Upon the other hand, it was equally competent for them to make the contract upon which this suit is brought, and which declares as plainly as words can express it that the assured shall keep a set of books, and within 30 days make an inventory; that both books and inventory shall be preserved by the assured in a particular way; that the books and the inventory so made shall be produced by the assured for the inspection of the insurer; and that, if the assured should fail to make the inventory, or to preserve and produce both the inventory and...