Western Assurance Co. v. Altheimer
| Decision Date | 24 March 1894 |
| Citation | 25 S.W. 1067,58 Ark. 565 |
| Parties | WESTERN ASSURANCE COMPANY v. ALTHEIMER |
| Court | Arkansas Supreme Court |
Appeal from Jefferson and Lincoln circuit courts, JOHN M. ELLIOTT Judge.
Altheimer Bros. brought suits against the Western Assurance Company and the Imperial Fire Insurance Company and recovered judgment in both suits. The cases were consolidated on appeal. The facts are stated in the opinion of the court.
Judgment affirmed.
Austin & Taylor for appellants.
1. The court admitted incompetent testimony. The question to Kaufman and his answer thereto are objectionable, because the question was leading, and required a legal opinion of the witness.
1 Gr Ev. (14 ed.) sec. 434. The answer usurped the province of the jury.24 Ark. 251; Thomps. Trials, sec. 377,; 63 Tex. 334.
2. It was error to allow Henry Walstein to testify to what was told him. The evidence was hearsay.
3. The question asked Rosenberg was not competent. It seeks an opinion of the witness on an issue that was submitted for decision to the jury. 1 May, Insurance, sec. 156.
4. Plaintiff's first prayer was error. A substantial compliance with affirmative and promissory warranties is not sufficient. They must be strictly and literally complied with. May on Ins. secs. 156-7; Angell on Fire Ins. sec. 145; 57 Ark. 279; 61 Am. Dec. 81; 30 N.Y. 136; 21 Conn. 19, 32; 7 Wall. 386; 1 Blatch. 280; 2 Pars. Mar. Law, 401; 55 Vt. 308; 23 Wend. (N.Y.) 525.
5. The second prayer for plaintiff is erroneous. It is in conflict with the real facts, and invades the province of the jury. 53 Ark. 381; 45 id. 165; ib. 472; ib. 256; 52 id. 517.
6. The court erred in refusing defendants' third prayer. The manner of keeping the books was not in compliance with the "Iron Safe" clause. 53 Ark. 353; 2 Wood, Ins. sec 449; 1 Sumner, C. C. 434; 63 N.Y. 111-113; May, Ins. 156; 98 Mass. 381; 57 Ark. 279.
7. The verdict is contrary to the law and the evidence. The books and the evidence show that Altheimer Bros. were not the owners of the stock. 4 Gray, 451. Mrs. Altheimer and Kaufman were partners in the concern, as to third parties. 14 Ala. 306; 58 id. 230; 52 Ga. 567; 53 id. 160; 26 N.J.L. 293; 18 Wend. (N. Y.) 183; 54 Ark. 384. A "community of interest in the profits" is clearly shown. 37 Conn. 258; 6 Halst. 181; Parsons, Cont. 132, 150; 2 Harr. & G. 171; 30 U.S. 529, 8 Law Ed. 216; 36 Mo. 38; 88 Am. Dec. 129; 15 id. 369; 5 id. 142. If not the sole owners, plaintiffs can not recover. 54 N.W. 326. The court should have set aside the verdict. 47 Ark. 567; 57 Ark. 461; 39 id. 393; Moak's Underhill on Torts. 74.
Bell & Bridges for appellees.
1. The objections as to incompetent testimony are not well taken. Rosenberg was an expert. 7 Am. & Eng. Enc. Law, p. 494.
2. The first instruction is not objectionable. The word substantial only applies to a compliance with the promissory clauses, a substantial breach of which avoids the policy. 51 Wis. 37; 11 Am. & Eng. Enc. Law, p. 293; lb. p. 299, sec. 3; 54 Ark. 376. But appellants had the full benefit of a strict construction as to proof of loss in their fourth prayer, so they were not prejudiced.
3. Instruction 2 does not invade the province of the jury. 54 Ark. 384; ib. 346. The third instruction properly refused. The Pelican Case, 53 Ark. 353, is not in point. In that case there was an utter failure to comply with the clause. In this case experts say the books were kept in the usual and customary method, and show a complete record of all sales, etc. 63 N.Y. 111; 7 Am. & Eng. Enc. Law, p. 494; 36 Iowa 472; 9 N.Y. 183; 39 N.Y. 245; 58 Miss. 368; 43 Oh. St. 270; 54 Ark. 376; 38 F. 19; Wood on Ins. (2nd ed.) p. 174; ib. 433-4; May on Ins. (3d ed.) sec. 173.
5. The arrangement with Kaufman and Mrs. Altheimer did not constitute a partnership. 54 Ark. 346; ib. 384; May, Ins. sec. 287c. The question was fairly submitted to the jury on proper instructions, and they found for plaintiffs. 48 Ark. 495; 49 id. 122; 46 id. 524; 54 id. 289, etc.
J. M. & J. G. Taylor, amici curial.
The mere fact of receiving a portion of the profits of the business for their services did not make Mrs. Altheimer and Kaufman partners. 28 Fla. 209; 10 So. Rep. 298; 1 Lindley on Part. p. 329; Parson's Part. sec. 366; 76 Ind. 157; Bates on Part. secs. 259-60; 42 Ark. 390; 22 Pick. 151; 54 Ark. 387; 24 How. 543; 95 U.S. 293; 5 Gray, 58; 45 Mich. 188; 130 U.S. 472; 76 N.Y. 55; 87 id. 33; 71 Ill. 148; 7 Iowa 435; 13 R. I. 27; 145 U.S. 623; Story, Part. sec. 38.
2. Conditions avoiding a policy are construed strictly in favor of assured. Barbour, Ins. sec. 17; 17 Iowa 176; 4 R. I. 156.
These suits were to recover upon policies of fire insurance, on a stock of merchandise, dry goods, etc., executed by appellants to appellees in September, 1890. The policy in the Western called for one thousand dollars; and in the Imperial, for fifteen hundred dollars. The fire and loss occurred on the 22nd of January, 1891. Suits were begun in Jefferson county circuit court, April 20, 1891. The first suit was tried there; the second was tried, on a change of venue, in Lincoln county. On the issues joined the causes were submitted to a jury. Verdict and judgment for appellees. On appeal here the cases were consolidated, on their motion.
1. The third, fourth, fifth and sixth assignments of error relate to irregularities in eliciting the testimony of witnesses before the jury, both as to questions propounded by counsel, and the answers of the witnesses. Trial judges should see that counsel violate none of the rules prescribed for the examination of witnesses. A due regard for the legal production of evidence, and an orderly dispatch of the business, should cause the trial court to act promptly in suppressing leading questions and excluding irrelevant or impertinent answers. We realize, however, the impracticability, if not the impossibility, in many instances, of an adherence to rigid rules, and much must necessarily be left to the good judgment of the judge under whose eye the proceedings are had, to see that no unfair advantage is taken, and that no prejudice results to parties litigant by irregularities of the character complained of here. Taking the whole record of the examination of the witnesses, we find no reversible error in these assignments.
2. The seventh, eighth and ninth assignments are that the verdict was contrary to the law and evidence. These will be disposed of in our discussion of the first and second assignments, which present the only important questions for our determination.
In each of the policies sued on was the following clause: "The assured, under this policy, hereby covenants to keep a set of books showing a complete record of business transacted, including all purchases and sales both for cash and on 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 is not actually open for business, or in some secure place not exposed to a fire which would destroy the house where said 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 a 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."
The plaintiffs (appellees) alleged a compliance with this condition of the policy; the defendants (appellants) denied. Was there a compliance?
The only breach of this condition assigned by appellants was a failure by appellees to keep a set of books showing a complete record of the cash sales. The evidence upon this issue was substantially as follows: "It is hereby agreed that the following is a fair sample of the manner in which plaintiffs kept a record of daily sales for cash, as appears on their book of daily sales for cash on page 241 and page 300:
The book-keeper explained the above as follows: The bookkeeper kept a "double entry"...
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