91 Ark. 310 | Ark. | 1909
(after stating the facts.) The policy provides that “the books and inventories and each of the same shall be by the assured kept securely locked in a fireproof safe at night, and at all times when the building mentioned in the policy is not actually open for business.”
It has often been held by this court that a clause in a fire insurance policy similar to the above, and generally designated as the “iron safe clause,” is valid, and that a compliance with its terms by the assured is essential to recovery. Western Assurance Co. v. Altheimer, 58 Ark. 575; Southern Ins. Co. v. Parker, 61 Ark. 207; Germania Ins. Co. v. Bromwell, 62 Ark. 43; Sun Mut. Ins. Co. v. Dudley, 65 Ark. 240.
In the case at bar the evidence was ample to warrant the court in submitting to the jury the question as to whether the appellee had complied with the provisions of the iron-safe clause. The facts in this case bring it clearly within the rules of law announced by this court in Sun Insurance Co. v. Jones, 54 Ark. 376, and the trial court, on the question under consideration, followed closely the doctrine of that case in its instructions numbered two and three.
Wampoo was situated in a country district, where the great majority were negroes, who, being paid off on Saturday nights, visited the stores at that time and remained for some time in making their'purchases. ' It was proper to prove what the custom of these stores was in that district or place to accommodate the trade there, and appellant, effecting insurance on a store in such territory, must take notice of the custom of such stores as to their hours of trade as affecting the risk incident to the insurance of such property. There were only two stores in the country district of Wampoo where the people gathered for trade and to get their mail. The custom of these two stores as to the hours of business and trade was therefore necessarily the custom for that 'territory; and appellant, insuring one of these stores, must be held to have taken the usual or customary hours of business into consideration in consummating its contract with appellee.
“A usage of trade may have a greater or less territorial extent or a more general or restricted one, according to the circumstances which give rise to it.” 12 Cyc. p. 1041, and cases cited in notes. There was no error in admitting the evidence of the custom of the two stores in keeping open on Saturday nights, nor in instruction numbered two.
So far as the preservation of the inventories was concerned, they fall under the same clause and the same rule for the preservation of the books; and the court properly submitted the question as to whether appellee had been negligent in preserving these according to the provisions of the policy in its instruction numbered four.
Conceding that the contract of insurance was indivisible under the doctrine announced in McQueeny v. Phoenix Ins. Co., 52 Ark. 257 and Planters Ins. Co. v. Lloyd, 71 Ark. 292, we do not see how the court’s instruction number one was prejudicial to appellant. The verdict shows that the jury found that there was no breach of the conditions of the iron-safe clause, and no forfeiture of the policy upon any other ground. Hence the question of the divisibility of thé contract did not arise. So appellant is not prejudiced by the erroneous instruction.
This disposes of the instructions given by the court.
The prayers of appellant 1 and 2, which the court refused, in effect told the jury that upon different phases of the undisputed evidence in the case appellant was entitled to a verdict. Prayer number 3 was in form a peremptory direction for appellant. All these prayers were properly rejected.
Finding no reversible error, the judgment is affirmed.
