Virginia Fire & Marine Ins. Co. v. Cummings

• Decision Date: 14 January 1904
• Citation: 78 S.W. 716
• Parties: VIRGINIA FIRE & MARINE INS. CO. v. CUMMINGS.
• Court: Texas Court of Appeals

78 S.W. 716

VIRGINIA FIRE & MARINE INS. CO. v. CUMMINGS.

Court of Civil Appeals of Texas.

January 14, 1904.

Error from District Court, Harris County; W. P. Hamblen, Judge.

Action by O. S. Cummings against the Virginia Fire & Marine Insurance Company. From a judgment in favor of plaintiff, defendant brings error. Reversed.

Alexander & Thompson, for plaintiff in error. H. Grass and Bryan, Tod & McRae, for defendant in error.

GARRETT, C. J.

This action was brought by O. S. Cummings, as assignee, against the Virginia Fire & Marine Insurance Company, to recover on a policy of fire insurance issued to J. R. Kimmins for $1,000 on a stock of hardware, and $600 on a building situated in the town of Alvin, in Brazoria county.

The petition alleged that at the time the policy was issued the property belonged to the Kimmins Hardware Company, a firm composed of J. R. Kimmins and W. R. Kimmins; that the defendant knew the true ownership, and when it issued the policy intended to insure the property of the Kimmins Hardware Company, although the policy was issued in the name of J. R. Kimmins. It was also alleged that an adjuster of the defendant had investigated the loss and expressed himself satisfied, and had offered 50 per cent. of the face of the policy in settlement thereof, which the plaintiff had refused, demanding payment of the full amount.

Among the defenses pleaded were stipulations of the policy to furnish proofs of loss, the "iron-safe clause," and a provision that the policy should be void if the assured were not the sole and unconditional owner of the property. It was averred that J. R. Kimmins, to whom the policy was issued, was not the sole and unconditional owner of the property insured; that he owned only a half interest therein, the other half being owned by W. R. Kimmins. It was also averred that the assured had failed to take the inventories and keep the books of account, and to preserve them, as required by the iron-safe clause. There was a jury trial, which resulted in a verdict and judgment in favor of the plaintiff for the full amount of the policy.

The policy sued on was as described in the petition. Among other things, it provided for notice and proofs of loss if fire should occur, and that no sum should be due and payable, or any suit maintained thereon, until such stipulation had been complied with. It further provided: "The following covenant and warranty is hereby made a part of this policy: (1) The assured will take a complete itemized inventory of stock on hand at least once in each calendar year, and unless such inventory has been taken within twelve calendar months prior to the date of this policy, one shall be taken in detail within thirty days of issuance of this policy, or this policy shall be null and void from such date. (2) The assured will keep a set of books, which shall clearly and plainly present a complete record of business transacted, including all purchases, sales and shipments, both for cash and credit, from date of inventory, as provided for in first section of this clause, and also from date of last preceding inventory, if such has been taken, and during the continuance of this policy. (3) The assured will keep such books and inventory, and also the last preceding inventory, if such has been taken, securely locked in a fire proof safe at night, and at all times when the building mentioned in this policy is not actually open for business, or failing in this, the assured will keep such books and inventories in some place not exposed to a fire which would destroy the aforesaid building, and unless such books and inventories are produced and delivered to this company for examination, this policy shall be null and void; and no suit or action shall be maintained hereon; it is further agreed that the receipt of such books and inventories and the examination of the same shall not be an admission of any liability under the policy, nor a waiver of any defense to the same." It is further provided that, if the assured named in the policy were not the sole and unconditional owner of the property offered for insurance, the policy shall be void. It further provided: "This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto; and no officer, agent or other representative of this company, shall have power to waive any provision or condition of this policy (except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions, no officer, agent or representative shall have such power or be deemed to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed unless so written." The policy was dated September 5, 1901, signed by the president and secretary, and provided that it should not be valid until countersigned by the duly authorized agents of the company at Houston, Tex., and it was countersigned by Spears & Kattman, as such agents at Houston, Tex.

The stock of hardware and the building insured belonged, at the time the policy was issued and when it was terminated by fire, to the Kimmins Hardware Company, a partnership composed of J. R. Kimmins and W. R. Kimmins, doing business at Alvin, in Brazoria county. It was burned on August 6, 1902. The value of the property destroyed was sufficient to support the amount of the judgment under the provisions with respect to liability only for three-fourths of loss, and for proportionate amount thereof in case of concurrent insurance. About 10 days after the fire H. C. Robinson, as adjuster for the defendant, went to Alvin and examined into the loss. The assured produced such books and papers as he had. Inventories had been taken in January, 1901, and in January, 1902. The 1901 inventory, and invoices of purchases made between January 1, 1902, and the date of the fire, were left out of the safe and burned in the fire, but the invoices had been journalized. From the books and papers preserved a substantially complete record of the business transacted, including all purchases, sales, and shipments, both for cash and credit, was shown, and the amount and character of the inventory of January, 1901, could be and was determined with reasonable accuracy. See companion case, Continental Ins. Co. v. Cummings, 78 S. W. 378, 8 Tex. Ct. Rep. 881. The iron-safe clause was substantially complied with, and further proofs of loss were waived by the acts of the adjuster of the defendant. The policy was transferred by J. R. and W. R. Kimmins to O. S. Cummings, the plaintiff, on August 9, 1902.

Upon the question of estoppel by notice to the defendant of the true ownership of the property, the evidence showed that one...