| Ark. | Oct 21, 1905
(after stating the facts.) 1. The court erred in instructing the jury that if plaintiff “removed his property or any part of it from the building before the fire, except in the usual course of selling goods, this would be a fraud on defendant,” and would discharge the defendant from liability under the policy. This is not the law. There is no stipulation in the policy preventing the insured from reducing the amount of his stock of goods in any manner that he saw fit. The only stipulation in this regard found in the policy is that the company “shall not be liable beyond three-fourths of the actual cash value of personal property at the time any loss or damage occurs.”
2. The court also- instructed the jury that if “the loss occurred either through the negligence of the plaintiff or was'the' result of his own wrong,” the defendant would not be liable. This was erroneous. The policy contains no stipulation exempting the company from liability where the loss occurred through the negligence of the insured, nor does the law create or imply such an exemption. There is a provision in the policy that the •company should not be liable for loss caused “by neglect of the insured to use all reasonable means to save and preserve the property at or after a fire, or when the property is endangered by fire in neighboring premises.” This part of the contract only requires the insured to exercise care in saving and preserving the property at or after the fire, and prevents a recovery for loss of so much of the property as could have been saved by the insured with the exercise ol due care and the use of reasonable means. German-American Ins. Co. v. Brown, 75 Ark. 251" date_filed="1905-04-29" court="Ark." case_name="German-American Insurance v. Brown">75 Ark. 251.
The law is well settled that the insurer is liable, even though the negligent act of the insured or his servants be the proximate cause of the damage through the fire. Kerr on Insurance, p. 358; 2 May on'Insurance, § 408; Ostrander on Insurance, § 192; Johnson v. Berkshire Mut. Ins. Co., 4 Allen (Mass.), 388; Enterprise Ins. Co. v. Parisot, 35 Ohio St. 35; Phenix Ins. Co. v. Sullivan, 39 Kan. 449" date_filed="1888-01-15" court="Kan." case_name="Phenix Insurance v. Sullivan">39 Kan. 449; Columbia Ins. Co. v. Lawrence, 10 Pet. 507" date_filed="1836-02-18" court="SCOTUS" case_name="The Columbia Insurance Company of Alexandria, in Error v. Joseph W. Lawrence, Who Survived Thomas Poindexter">10 Pet. 507; Mickey v. Burlington Insurance Co., 35 Iowa, 174" date_filed="1872-10-10" court="Iowa" case_name="Mickey v. Burlington Ins.">35 Iowa, 174.
The law on this subject is stated by a learned text writer as follows: “Mere carelessness and negligence, however great in degree, of the insured, or his tenants or servants, not amounting to fraud, though the direct cause of the fire, are covered by the policy. Indeed, one of the principal objects of insurance against fire is to guard against the negligence of servants and others;, and, therefore, while it may be said generally that no one can recover compensation for an injury which is the result of his own negligence or want of care, the contract of insurance is excepted out of the general rule. Nor does it make any difference whether the negligence is that of the insured himself or of others.” 2 May on Insurance, § 408.
The instruction complained of was highly prejudicial h> appellant, as the jury may have found, from the testimony tending to show that the door of the store was found open, coal oil spilled on the floor and a hole in the oil can, that there was negligence on the part of appellant or his agents.
3. Appellant complains at the giving of several instructions, on motion of appellee, and of one given on the court’s own motion, after the jury had deliberated for a time and returned into' court without a verdict, concerning the duty of appellant to keep his books of account in an iron safe or to preserve them in some other safe place. There is no condition or agreement in the policy, nor elsewhere, imposing such duty, so far as the record shows; therefore the instructions on this subject were abstract.
Reversed and remanded for a new trial.