Sun Insurance Co. v. Jones

• Decision Date: 04 April 1891
• Citation: 15 S.W. 1034,54 Ark. 376
• Parties: SUN INSURANCE COMPANY v. JONES
• Court: Arkansas Supreme Court

15 S.W. 1034

54 Ark. 376

SUN INSURANCE COMPANY v. JONES

Supreme Court of Arkansas

April 4, 1891

APPEAL from Pulaski Circuit Court, JOSEPH W. MARTIN, Judge.

S. M Jones & Co. sued the Sun Mutual Insurance Co. in the Pulaski circuit court on a policy of insurance for $ 2000, on a house and stock of goods which had been destroyed by fire at Riverside, Arkansas.

Defendant answered, alleging that, by the terms of the policy of insurance, it was stipulated as follows:

"The assured under this policy hereby covenants and agrees to keep a set of books, showing a complete record of all business transacted, including all purchases and sales, both for cash and credit, together with the last inventory of said business; and further covenants and agrees to keep such books and inventory securely locked in a fire-proof 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 such business is carried on; and in case of loss the assured agrees and covenants to produce such books and inventory, and in the event of the 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."

That the plaintiffs failed to keep a set of books showing a complete record of all transactions and a last inventory, and failed to keep said books and inventory securely locked in a fire-proof safe at night, and at all times when their store was not actually open for business, or in a secure place not exposed to fire which would destroy their business house; but they left their books out of the safe at night when no business was being carried on, so that they were destroyed by the fire which consumed the building, and were not produced in accordance with the terms of the said policy.

The defendant also pleaded that, by the terms of the policy, it was provided that no suit should be maintained thereon unless brought within one year after the loss, and that this suit was not brought until the lapse of more than one year.

The case was tried by the court sitting as a jury, and the following findings of fact were made:

"The store house and stock at the time of destruction by fire was covered by insurance in this company for $ 750 on house and $ 1250 on merchandise; other insurance on stock, $ 1000 in New Orleans Insurance Association, and $ 3000 in Southern Insurance Company. Value of house, $ 1200; value of stock, $ 9500.

"The house and stock were destroyed by fire on the 9th day of December, 1887, at about 9:30 o'clock p. m.; that plaintiffs had a fire-proof safe in their store-house in which their mercantile books, such as are ordinarily kept by merchants, were kept when not in use. It was the plaintiff's custom to take the books out in the morning and lay them on the desk for use during business hours; they were kept out until the business of the day was closed and the books were posted and written up, when they were put in the safe and locked up; that it was the custom to write up the books in the evening, after the rush of business was over; the store was kept open for customers and business transacted frequently as late as 10 or 11 o'clock p. m and their habit was to admit customers as late as those hours, though after night the front door was locked to prevent intrusion of improper characters, but the doors were sash doors with glass in them so that customers could see that the house was open for business, and on knocking they would be admitted; that on the evening of the fire the house was being kept open in this customary manner, and a light in the office and the rear part of the store to advise customers that they could so enter. This was the customary mode of carrying on mercantile business in that section of the country. The clerk was in the office writing up the day's business, as usual, with the books on the desk, the business of the day not being yet closed, the posting of the books not finished, when, upon invitation of a friend, he stepped out the side window across to his friend's in a store next door, to eat a plate of oysters, intending to return in a short time and close up the books and put them away in the safe, as usual, and while so engaged, the fire broke out. At the time of the fire, B. M. Jones, one of the plaintiffs, who occupied, with his family, rooms at the end of the store-house, connecting with it in the rear, was waiting, as was his usual custom, to put the books away and lock the safe after the clerk should have finished posting up the books, as was their usual custom. There was money in the safe, and Mr Jones carried the key, and it was the usual habit for the clerk to get through posting up at night and then go back and have Mr. Jones come in, put the books away and lock up the safe for the night. The proof of loss was duly made February 1st, 1888; this suit was commenced on the 10th day of January, 1889."

The defendant asked the court to declare the law to be that the plaintiffs were debarred from recovering by reason of their failure to keep their books in an iron safe at night and at all times when their store was not actually open for business, and that the suit was barred because not brought within one year next after the date of the fire; but the court refused both declarations, and to its action in so doing the defendant excepted at the time.

From a judgment in favor of the plaintiffs defendant has appealed.

Judgment affirmed.

U. M. & G. B. Rose and E. W. Kimball for appellant.

1. The iron-safe clause has been frequently passed upon and sustained. 5 S.E. 125; 18 Ins. Law Jour., 813; 13 S.W. 799; ib., 1103. This clause required the books kept in a fire-proof safe at night and when the store was not actually open for business. The proof shows that the fire occurred at night, and that the books were not locked in the safe, and that the store was not actually open.

2. The suit not having been brought within one year after the loss, it was barred. The "loss" is the fire, and not the "proof of loss." 7 Gray, 61; 7 Wall., 386; 26 La. An., 298; 16 U. C. Q. B., 135; 83 Va. 741; 91 Ill. 92; 51 Conn. 17; 1 Bradw. (Ill.), 309; 66 Mo. 32; 1 Ohio Ct. Ct., 192; Berryman's Ins. Dig., 792; 21 New B., 544; 20 Bradw., 431; 12 Ont. App., 418, cited Ber. Ins. Dig., 794.

J. M. Moore for appellees.

1. The iron-safe clause is to be construed with reference to the well known and long established commercial usages of the country. The store was open for business until the business of the day was closed, which was often as late as 10 or 11 o'clock at night. "At night" means during the night when the store was closed and business suspended. For cases where similar clauses have been reasonably construed, see 38 F. 19, and cases cited; 8 Cush., 79; 8 Metc. (Mass.), 124; ib., 125; 12 Wall., 404; 27 Cent. Law Jour., 284; 6 A. & E., 170; id., 75; 2 C. M. & R., 447; 17 N.E. 771, 776; 31 Me. 221-4-5; 1 Wood, Fire Insurance, 145.

2. The limitation did not begin to run until the right of action accrued, which, under the provisions of the policy, was sixty days after proof and adjustment of the loss. 2 Wood on Fire Ins., p. 1029; May on Ins., sec. 470; Flanders on F. Ins., p. 580; Bacon on Ben. Soc., sec. 446; 9 Ins. L. J., 113; 39 N.Y. 45; ib., 315; 28 Wis. 472; 16 W.Va. 658; 33 id., 409; 62 Ia.; 12 Ia. 384; 19 id., 364; 44 Mich. 420; 45 N.W. 285; 17 F. 568; 25 id., 296; 30 id., 668; 83 Cal. 473; 53 Ark. 300; Berryman's Ins. Dig., 782. The policy is construed most strongly against the insurer. 9 Ky. Law. Rep., 147; Ber. Ins. Dig., 783, and cases supra.

OPINION

MANSFIELD, J.

The only contention made by counsel for the appellant on the first ground of defense is that the store was not "actually open for business" at the time of the fire. And it is argued that the book-keeper, who was last in charge of the store on the night it was burned, had left it locked and unoccupied, and it could not therefore have been at any later time open for business. But the facts as found by the court are, that the book-keeper, who was also a salesman, was engaged in writing up the record of the day's business, a duty which the policy itself enjoined when, passing out of the building by a window, he went into an adjoining store, expecting to return in a short time and complete his...