74 W. Va. 694 | W. Va. | 1914
In an action on a fire insurance policy issued July 3, 1912, • plaintiff recovered a judgment for $2,086.42, and defendant was awarded this writ of error.
Tbe insurance covered real estate and personal property as follows, viz: $450 on a building, occupied by plaintiff both as a store and a dwelling; $1,300 on bis stock of merchandise; $200 on fixtures; and $200 on household furniture, therein. The building and its contents were totally destroyed by fire on October 19, 1912. The defense is that plaintiff failed to comply with certain conditions and warranties contained in the policy. One is that the policy describes the building as situate “on the Charleston and Ripley Turnpike, Sissonville, W. Va., (Kanawha County),” while it is proven to be located on the turnpike a mile and a half from Sissons-ville. Defendant contends that plaintiff concealed or misrepresented its true location, and that, if it had known that the property was not located at Sissonville, it would not have taken the risk. It is well known that the risk as well as the rate of premium charged by insurance companies varies according to the location of the property. 19 Cyc. 664. Sis-sonville is a small town and is the name of the post office where plaintiff received his mail, and it may be that the actual location of plaintiffs property, being one and half miles from Sissonville, comes within the description of the location given in the policy. The language does not necessarily mean that the property is in Sissonville, and may with equal propriety, mean near to Sissonville. But assuming that the location is
The next point raised is that defendant is not liable, because plaintiff did not comply with the iron safe clause of the policy. That clause bound the assured to “take a complete itemized inventory of stock on hand at least once in each calendar year,” and, unless such inventory had been taken within twelve months prior to the date of the policy, he was bound to take such inventory “in detail within thirty days of the issuance of this policy?’ Plaintiff was also required to keep a set of books which should contain a “complete record of business transacted, including all purchases, sales and shipments, both for cash and credit from the date of the inventory, ’ ’ which were to be kept locked in a fire proof safe at. night and at all other times when the building was not open for business, or, failing in this, he was to keep such books and inventories in a place not exposed to fire which would destroy the building. The policy also- stipulated that non-compliance with these conditions should render it void and bar any recov
“An invoice of goods purchased is not an inventory of stock to be produced under the ‘iron safe clause'' of a fire policy.” Southern Fire Ins. Co. v. Knight, 111 Ga. 622. Day v. Some Ins. Co., 177 Ala. 600, 58 Sou. 549; Shawnee Fire Ins. Co. v. Thompson and Rowell, 119 Pac. 985, 30 Okl. 466; Royal Fire Ins. Co. v. Kline Brothers Co., 198 Fed. Rep. 468; Home Ins. Co. v. Delta Bank, 71 Miss. 608; Phila. Fire Assn. v. Masterson, 25 Tex. Civ. App. 518; Hartford Fire Ins. Co. v. Adams, (Tex. Civ. App.), 158 S. W. 231; Scottish Union Ins. Co. v. Virginia Shirt Co., 113 Va. 361, 74 S. E. 228; Penix v. American Cent. Ins. Co., (Miss.), 63 Sou. 346; Everett-Bidgley Co. v. Ins. Co., 121 Ga. 228; German Ins. Co. v. Bates, 67 Ill. App. 370.
The case was not briefed or orally argued in this court by counsel for plaintiff, and it is suggested in brief of counsel for defendant that the trial court was induced by the decision of this court in Ruffner Bros. v. Insurance Co., 59 W. Va. 432, to let in proof of loss in the manner complained of. That case differs materially from this, in that the stock of goods in that case was entirely new at the date of insurance, having been placed in the building but a few days before, while in the present case plaintiff had been adding to, and selling from, his stock for a period of eleven months before it was insured. Judge PoeeeNbarger, who -wrote the opinion in the Ruffner Bros, case, expressly says that the invoices would not constitute an inventory, within the meaning of the policy, in the case of a store which had been conducted for a considerable time; and Judge BrantstoN, although concurring in the opinion, expressed a doubt whether such invoices could take the place of an inventory in any ease. That the promissory warranty, generally denominated the “iron safe clause” is
But the iron safe clause relates only to the stock of merchandise, and non-compliance with it does not necessarily affect defendant’s liability with respect to the other property insured. It was not intended to apply to the building itself, the household furniture, or the fixtures in the building; and notwithstanding the policy expressly provides that it shall be void and no action shall be maintained upon it, if any of the warranties are violated, the rule established by the great weight of decisions is, that, in the absence of fraud or any act condemned by public policy, the contract is divisible and recovery may be had for the loss of other property not affected by the particular warranty broken. The risk as to the building, fixtures and household furniture is in no wise increased by a failure to preserve an account of the mercantile transactions. Mitchell v. Mississippi Home Ins. Co., 72 Miss. 53, 18 Sou. 86, 48 Am. St. Rep. 535; Miller v. Delaware Ins. Co., (Okl.), 75 Pac. 1121, 65 L. R. A. 173; Miller v. Scottish Union & National Fire Ins. Co., (Okl.), 75 Pac. 1135; Roberts, Willis & Taylor Co. v. Sun Mut. Ins. Co., 13 Tex. Civ. App. 64, 35 S. W. 955; Georgia Home Ins. Co. v. McKinley, 14 Tex. Civ. App. 7, 37 S. W. 606; Sun Mut. Ins. Co. v. Tufts, 20 Tex. Civ. App. 147, 50 S. W. 180. Contra: Southern Fire Ins. Co. v. Knight, 111 Ga. 626, 36 S. E. 821.
Defendant further insists that the policy is avoided because plaintiff had only a leasehold estate for years in the building insured, whereas the policy contains the provision that “if the subject of insurance be a building on ground not owned by the insured in fee simple,” the policy shall be void. Plaintiff was permitted to testify, over objections, that he informed defendant’s agent when he applied for insurance of the character of his estate in the property, and also that he did not read his policy until after the fire and was therefore ignorant of its contents. Plaintiff did not make written application, and he swears positively that he told the agent that he had only a fifteen year lease and that he paid a rental of $5 a year for it. But this is denied by the agent. This question, like the one relating to the location of the property,
At the conclusion of plaintiff’s evidence there was a motion by defendant to exclude it which was overruled and it excepted. Defendant however waived the exception by subsequently inti'oducing evidence on its own behalf. It is unnecessary to cite cases in support of this rule so frequently announced by this court.
It does not appear that the court gave any instructions at the request of plaintiff, but defendant complains of the refusal to give certain ones of its instructions and the modification of others. In view of what we have already said, it was not error to refuse defendant’s peremptory instruction to find for the defendant.
It was error to give instruction No. 2 which is as follows: ‘The jury are instructed that when parties have -made a written • agreement such as the policy in this case, said policy is regarded as the exclusive evidence of the contract, and
Instruction No. 3 is also erroneous. Non-compliance with the promissory warranties respecting the taking of inventories and the preserving of books of- accounts in an iron safe, does not necessarily call for a verdict for defendant. If not entitled to recover for the stock of merchandise plaintiff may still be entitled to recover for other property insured. Instruction No. 4 is likewise erroneous for the same reason. Instruction No. 6, we think, correctly defines the term “inventory” as used in the iron safe clause, but it is erroneous in that it tells the jury to find for the defendant m case they find this clause has not been complied with. Their finding, under this instruction, should be limited to the insurance on the stock of merchandise.
In view of the fact that plaintiff had been conducting a mercantile business in the building for eleven months prior to taking out insurance, and had not at any time taken an inventory of his stock of merchandise, the court should not have modified instructions Nos. 7 and 15, but should have given them as originally prepared. Plaintiff’s own testimony shows clearly that there has been no substantial compliance with the iron safe clause.
It was not error to modify, and give to the jury as so modified, instructions Nos. 8, 9, and 18. The modifications were properly made to permit the jury to consider the oral testimony concerning representations made to the agent at the time of plaintiff’s application for insurance respecting his estate in, and the location of, the building.
We reverse the judgment, set aside the verdict and remand the case for a new trial.
Reversed and Remanded.