Wolff v. National Liberty Insurance Co.

• Decision Date: 17 June 1935
• Docket Number: 4-3903
• Citation: 83 S.W.2d 836,191 Ark. 146
• Parties: WOLFF v. NATIONAL LIBERTY INSURANCE COMPANY
• Court: Arkansas Supreme Court

83 S.W.2d 836

191 Ark. 146

WOLFF v. NATIONAL LIBERTY INSURANCE COMPANY

4-3903

Supreme Court of Arkansas

June 17, 1935

Appeal from Jefferson Circuit Court; T. G. Parham, Judge; reversed.

Judgment reversed and cause remanded.

Sam M. Levine and Frauenthal & Johnson, for appellant.

Verne McMillen, for appellees.

OPINION

BUTLER, J.

Appellant, Leo Wolff, is a merchant engaged in business in the town of McGehee, Arkansas. His place of business was located in a building known as the Graystone Hotel Building, his merchandise being stored in two rooms therein. The building was situated in block 51 of the town of McGehee. A part of the building was constructed prior to 1925, and in that year it was extended toward the north by the construction of an "annex" or addition thereto. The original building with the annex was so built as to constitute one building. In a room at the southeast corner of the building fronting on what is known as Railroad Street appellant maintained his store proper, from which he sold merchandise at retail to his customers. The building faced Railroad Street, and the front extended to the north. Next to said room, in the southeast corner of the hotel, was the lobby; then there was a coffee shop, and immediately north of that was a barber shop, at the rear of which was the hotel kitchen. At the far end of this kitchen was a little jewelry store facing on another street, and just beyond that was the room where the appellant stored the greater amount of his merchandise to be used as occasion required. This last-mentioned room was in that part of the building which was annexed to the original hotel building in 1925. Appellant kept about $ 12,000 worth of merchandise in said southeast corner store room and about $ 60,000 worth in the room situated in the annex.

In McGehee, which is a comparatively small town, the names of its streets are not generally known, and the houses are not numbered. The buildings are known by some specific name or by the name of the owner or the occupant. None of the store rooms in the Graystone Hotel Building had any street numbers or were known by any number except on a map prepared especially for the use of insurance companies. Appellant maintained a single business, keeping but one set of books and one inventory, with his merchandise stored as heretofore stated.

A fire occurred in the Graystone Hotel Building, totally destroying the merchandise in the annex and damaging that contained in the southeast corner room used by appellant. Appellee National Liberty Insurance Company of America, prior to this fire, had issued its policy insuring the appellant against loss or damage by fire. It denied liability for any loss or damage to the goods stored in the room in the annex, which on its map is designated as No. 109, and asserted that the coverage only extended to the merchandise in the retail store room proper, which on its map is designated as "No. 101 North Railroad Street, block 51, original town of McGehee, Arkansas, map No. 2, serial No. 6115."

Appellant brought this suit to recover the face of the policy in the sum of $ 2,500. The appellee answered, admitting the value of the merchandise, the destruction by fire of all the merchandise in the warehouse and the damage to the merchandise in the "retail store," but setting up as a defense the coverage clause of the policy, contending that it did not insure the merchandise in any place except the retail store. A demurrer to the answer was interposed on the ground that it did not state facts sufficient to constitute a defense to the complaint, with a prayer that the said answer be stricken from the record, and that recovery be adjudged on the prayer of the complaint. The demurrer was overruled, whereupon appellant and appellee introduced a number of witnesses. At the conclusion of the testimony, the court instructed the jury to return a verdict of $ 152.08 in favor of the appellant, the admitted pro rata damage to the merchandise contained in the "retail store." A verdict for said sum was accordingly returned by the jury, and a judgment for said amount made and entered, from which comes this appeal.

The coverage clause in the policy is as follows: "$2,500 on stock of merchandise, consisting principally of dry goods, ready-to-wear, boots and shoes and including all merchandise owned by the insured or held in trust or on commission, or consignment, or sold but not removed, for which the insured may be legally liable.

"All while contained in the two-story approved composition roof, brick building, and additions thereto, and while on sidewalks and platforms adjacent to said building, and while loaded on cars, trucks and wagons within 100 feet thereof, and situated No. 101 North Railroad Street, lot __, block 51, original town addition to the city of McGehee, Arkansas, map No. 2, serial No. 6115."

It was in evidence on behalf of appellee that the map referred to in the policy was what is known as "Sanborn's Insurance Map" of the town of McGehee, which is compiled for the benefit of insurance companies and agents who write insurance. This map shows the "retail...