| Ill. App. Ct. | Mar 16, 1900
delivered the opinion of the court.
Counsel for appellant, in their brief say :
“ Appellant defends upon the ground, briefly stated, that the conditions of the policy requiring (1st) the keeping of set of books showing a complete history of their business: (2d) the taking and keeping of inventories, and the keeping of said books and inventories in a fire-proof safe; (3d) the production of such books and inventories for inspection after a loss, are reasonable provisions, and conditions precedent, to be shown by plaintiffs in order to a recovery.”
Appellees contend substantially (1st) that the above conditions were waived by appellant by the making of the “ adjustment;” (2d) that they are excused from the consequences of not keeping the inventory book in the iron safe and not producing it at the time of the adjustment, because such a default was not intentionally or fraudulently committed.
The issues of fact as made by the general issue, the second amended plea, and the first rejoinder to part of plaintiff’s replication to defendant’s fourth plea, substantially present the controlling questions in the case, as stated in the extract from the brief of counsel for appellant above quoted. The policy of insurance, with proofs of loss, was introduced by plaintiffs. This made a jprima facie case. Continental Life Ins. Co. v. Rogers, 119 Ill. 435.
The amount of the recovery, $2,310.66, does not exceed three-fourths of the loss, and is not disputed, if plaintiffs are entitled to any recovery at all.
The defense called witnesses, officers and employes of appellant, to testify as to what was said by appellee Dunbar in an examination under oath, at the office of appellant in Chicago. This evidence is in material points contradicted by Dunbar, and by Gibbons, an attorney for the assignees of the claim. The examination of Dunbar, at Chicago, was directed to ascertaining what books were kept by appellees and where kept. Both Dunbar and Wade testified upon this issue before the jury. Without referring to the evidence in detail, we think the jury was warranted in finding that appellees kept a blotter, or day book (Ex. F, in evidence), a ledger, and an inventory of what is referred to as the Mitchell stock, which stock was in the store when the policy was delivered, invoiced at $3,300, and that these books were in the safe when the fire occurred, and were submitted^to adjuster Wise, who was present when the safe was opened. It also appears from the evidence that an invoice of the stock other than the Mitchell stock was taken directly after the delivery of the policy. The book containing this invoice, a book similar to the book marked exhibit F, was not in the safe at the time of the fire and was burned or lost. There is no allegation in any pleading of appellant, that it was fraudulently or willfully left out of the safe, or that it was fraudulently or willfully lost or mislaid. Neither is there any evidence of fraud or willfulness. Both Wade and Dunbar testify that they do not know how it happened that this invoice book was left out, and that it was not done by design or intention. It is further in evidence that the totals of the invoice of both the Mitchell stock and the remainder of the stock were entered from the invoice book in the ledger. It is also in evidence that one Albert Fairfield, after the fire, made an examination of the books of appellees'in the interest of appellant, and received from appellees the day book, Exhibit F, which afterward appeared in Chicago in the possession of appellant; that after the investigation and examination of the books and of the figures made by Wise, Fairfield said he was satisfied; that Wise, the adjuster, saw the blotter, ledger and invoice of the Mitchell stock, and was told of the loss of the invoice book containing the inventory of the other stock made directly after the issuance of the policy. It is also in evidence that no cash book was kept, but that cash sales were entered in the ledger as “ daily sales,” and that the firm’s account with the bank was kept in the ledger. The blotter, or day book, was in the possession of appellant at the time of the examination of Dunbar in Chicago, and the ledger offered for examination, and money advanced by appellees, to pay the expense of an agent of appellant to Ina, where the ledger was kept, if it desired to inspect it. Wise,, appellant’s agent, and who acted as adjuster, after the-examination of the books, and after being told of the loss of the invoice book, said he was satisfied, and after coming back again to make further examination for appellant, again said he was satisfied. It is also in evidence that W. R. Burton, the agent of appellant who effected the insurance, saw the stock of goods when the policy was executed and delivered on the 6th of August, and that the Mitchell stock was in the store when the policy was issued.
Considering all the evidence in the case, we can not say that the jury erred in finding for plaintiffs on the general issue, and on the issue presented in the second amended plea. The policy did not require that an inventory of the stock of goods should be made at once, and kept in the safe. The language of the policy is, “ and agrees to take an itemized inventory of the stock on hand at least once every year, and to keep such -books and inventory securely locked at night in a fire-proof safe.” It was sufficient under this clause if the inventory was made within a year. .In Niagara Fire Ins. Co. v. Forehand, 58 Ill. App. 163, where a similar clause in the policy was considered, no books were kept.
The judgment of the Appellate Court was reversed in N. F. Ins. Co. v. Forehand, 169 Ill. 628. In this latter case it was held that a plea alleging a failure to keep books of-account and to keep them in a .fire-proof safe with intent to defraud the insurer, was a good plea, and that a demurrer to such plea was erroneously overruled. The court, in its opinion, says:
“ The provision was a reasonable one, and appellee having contracted by his policy of insurance to observe it, it was such a provision as was necessary to be fulfilled by him, and the failure to do so, with an intent to defraud the insurance company, would result in the forfeiture of his contract of insurance.”
In the case at bar, the ledger was posted from the blotter which contained the credit sales. The cash sales, as testified by Wade, were entered in the ledger as “ daily sales.” The bank account was kept in the ledger. There is nothing in the evidence to show that other goods were bought between -the 6th and 24th of August, unless it may be inferred from the testimony of Wade that “ there were some bills of goods run on there (the ledger) and put underneath our inventory; ” nor any evidence that goods were sold other than those charged in the blotter and those embraced in “ daily sales.” The book left out of the safe, according to the evidence, was similar to Exhibit F, which is made a part of the bill of exceptions—and is before us—a paperboand book, about twelve inches long and seven inches wide, containing 133 pages; such a book might' be easily overlooked and thereby unintentionally left out of the safe.
There being no allegations of an intent to defraud in the case at bar, and no evidence tending to sustain such an intent, and the evidence, as we think, showing a substantial compliance with the requirement to keep books of account, it can not be said that the verdict of the jury on the general issue and the issue of the second amended plea, is not supported by the evidence. If this conclusion is correct, the issue presented by the rejoinder to a part of plaintiff’s replication to the fourth plea, is an immaterial issue, since, in such case, a waiver was not necessary to plaintiff’s recovery.
The claim that appellees failed or refused to present their books for examination, except as to the book containing a part of the invoice, which was lost, is not supported bv the evidence. The books were examined by both Fair-field and Wise, appellant’s agents, and the blotter was in the possession of appellant. The evidence further shows that Dunbar advanced $14 to appellant to pay the expense of coming to Ina to examine the ledger, and that appellant retained the money, but did not come and make the examination.
The question of law presented by overruling demurrers to rejoinders of appellant as to waiver not being in writing, ■we deem unnecessa^ to decide, as, in our view, appellees are entitled to recover without reference to any waiver. Kor was there reversible error under the facts in the case in sustaining demurrers to rejoinders to replications alleging that the failure to keep books, etc., in.a fire-proof safe, there being no allegation of willfulness or fraudulent intent, and the replications showing a.compliance with the condition, except as to a part of the inventory, and that this exception was not willfully or fraudulently made.
We are not prepared to say that the accidental omission to put a small paperbound book in the safe, containing a part of an invoice, whose total is carried to the ledger, and when the stock of goods insured had been seen only eighteen days before by the agent effecting an insurance, is such a breach of a condition in an insurance policy as will forfeit the insurance.
Judgment of the Circuit Court is affirmed.