Teutonia Ins. Co. v. Tobias

• Decision Date: 10 January 1912
• Citation: 145 S.W. 251
• Parties: TEUTONIA INS. CO. v. TOBIAS.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

Page 251

145 S.W. 251

TEUTONIA INS. CO. v. TOBIAS.^†

Court of Civil Appeals of Texas. Austin.

January 10, 1912.

On Motion for Rehearing, March 13, 1912.

Appeal from District Court, McLennan County; Marshall Surratt, Judge.

Action by Abe Tobias against the Teutonia Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Crane & Crane, for appellant. W. L. Eason, for appellee.

JENKINS, J.

This suit was brought upon an insurance policy containing the "iron-safe" clause. Said policy contained, among other things, the following: "The assured will keep and preserve all inventories of stock taken during the current year, and also all those taken during the preceding calendar year which are on hand when this policy is issued, and will keep and preserve all books which are then on hand, showing a record of business transacted during the current calendar year and preceding calendar year."

Appellant requested the court to peremptorily instruct the jury to return a verdict for the defendant, and assigns error upon the refusal of the court so to do. In this we think there was error, for the reason that the evidence clearly shows that at the time said policy was issued the appellee had a record of his purchases for the preceding year, and that the same was not kept in an iron safe, or other safe place, as required by said policy, but was destroyed in said fire.

Appellee testified: "I had the record of my purchases as I have described for the year 1909 at the date when the policy in suit was issued. We had a little shelf right in the office where I kept the record of purchases for the year 1909. I did not have it in the safe. * * * I kept the book which was a record of our purchases for the year 1909 on a little shelf in the office with old files and letter files. It was not in the iron safe." This testimony, and other to the same effect, was given in the forenoon. When court had reconvened in the afternoon, the appellee testified that he had produced all of the records pertaining to his business which he had at the time the policy was issued, thus contradicting his testimony previously given. It is true that a witness may make a statement and afterwards contradict the same, and satisfactorily explain such contradiction by showing that his statement was made through inadvertence or upon a misapprehension of the facts; and in such case the jury may be justified in accepting the revised testimony of the witness as the basis of the verdict, but in our opinion the witness upon cross-examination of his subsequent testimony shows that his previous testimony was the truth, and that his amended testimony was an attempt to meet the exigencies of the case. We cannot see how unbiased minds could differ upon the proposition that the appellee's own testimony shows that he did not comply with the warranty clause in the policy above referred to.

The court in our opinion should have instructed a verdict for the defendant for another reason, and that is that the policy required the assured to make, prepare, and keep from and after the date of the policy a set of books showing a complete record of business transacted. The policy defines "complete record of business transacted" as follows: "The term, `complete record of business transacted,' as used above, is meant to include in said set of books a complete record of all the property which shall go into the premises and be added to the stock, and of all property taken from the stock, whether by the assured or by others, even though not technically purchases or technically sales." The purpose of this clause in the policy was to enable the assured and the company to ascertain from appellee's books at all times the amount of stock in his store. The assured was in the produce...