Merchants' Union Ins. v. Johnson, No. 24095

No. 24095 | Miss. | May 12, 1924

Cook, J.,

delivered the opinion of the court.

This is as appeal from the circuit court of Sunflower county, by the Merchants ’ Union Insurance Company, defendant in the court below, from a judgment rendered against it on a fire insurance policy covering cotton “ginned and unginned, baled and unbaled, seed cotton, cotton seed, including sacks or packages containing same, and bagging and ties,” only while on the ginnery premises.

To the declaration, which is in the usual form, the defendant filed its plea of the general issue and gave notice thereunder of several defenses, among them being an averment of a breach of what is known as a “record warranty” contained in the policy contract; this provision of the policy being as follows:

“It is warranted that the assured will keep a book, containing a complete and correct record of all cotton put in the gin house or cotton house, and all cotton taken from the gin house, or cotton house, and all cotton seed put in the gin house or seed house, and all cotton seed taken from the gin house or seed house, and in case of loss or damage, the assured will produce such book and record for examination by this company, otherwise this entire policy shall be null and void.”

At the trial the appellee offered in evidence a book, called a ledger, containing a record of the dates cotton was received at the gin, the number of the bale, the gross weight of the seed cotton, the weight of the bale, the weight of the seed, and a notation showing whether the cotton, or seed, had been delivered to the owner. It was admitted by the witnesses for the appellee that no such book was kept before the fire, and that the book offered in evidence was made up after the fire which destroyed both cotton and seed, and upon this admission the court excluded this book from the evidence. As a compliance with the record warranty, the appellee was then permitted to introduce in evidence the stubs of what are called the “gin tickets.” The evidence shows that the appellee furnished to the cotton weigher, who received and weighed the cotton hauled to the gin, a small book of tickets which are in the nature of blank receipts. "When a bale of cotton was delivered at the gin, it was. weighed and a blank ticket or receipt filled out, showing the weight of the cotton, and this ticket was then torn from the book and delivered to the owner of the cotton. There was entered on the stub from which a ticket was torn a statement of the date received, the name of the owner, the gross weight of the seed cotton, the tare, the net weight of the seed cotton, the weight and number of the bale, and the net weight of the seed. The gin manager and cotton weigher who issued these gin tickets, and filled out the stubs thereof, testified that when a bale of cotton was delivered to the owner he wrote on the margin of the stub the word “delivered,” and when the seed was not purchased by the gin owner, but was carried away by the owner, he wrote on the margin of the stub the word ‘ ‘ saved. ’ ’ The stubs of these gin tickets contained no entry whatever showing the amount of cotton sold or shipped by the gin owner, the appellee, and none showing the amount of seed sold or shipped by him. In an effort to meet this deficiency, the appellee offered, and was permitted, to introduce in evidence the bills of lading issued by the railroad company for certain cars of seed shipped, and also weigher’s tickets covering these cars, which were issued by the Refuge Oil Mill Company of Greenville, Miss. Upon this testimony the court below refused the peremptory instruction requested by the appellant, and submitted the cause to the jury under instructions which were in effect peremptory in so far as the question of a compliance with the record warranty js concerned.

There are numerous questions raised on this appeal, but the only one we deem it necessary to consider is whether or not the records kept by the appellee complied with the requirement that the assured should keep a book containing a complete and correct record of all cotton put in the gin house or cotton house, and all cotton taken therefrom, and all cotton seed put in the gin house or seed house, and all cotton seed taken therefrom.

The purpose of the warranty contained in this'policy is to prescribe the kind of evidence which may be used to establish the amount of the loss in case the goods insured are lost by fire, and the effect of our decisions is that stipulations in policies, of fire insurance as to the keeping of books showing a record history of the conduct of assured’s business with respect to the amount and value of the goods destroyed is to require the assured to keep such a book or books as will enable an accountant to ascertain from them, with reasonable accuracy, the amount or value of the property on hand at the time of the fire. Penix v. American Central Ins. Co., 106 Miss. 145" court="Miss." date_filed="1913-10-15" href="https://app.midpage.ai/document/penix-v-american-central-ins-7991656?utm_source=webapp" opinion_id="7991656">106 Miss. 145, 63 So. 346. In the case at bar the warranty only required the books to show the amount of the property on hand, but the requirement is that the record shall be complete and correct in this respect. No particular method of keeping the books is required thereby, but in order to comply therewith the book or books must themselves furnish the information with reasonable certainty without the aid of parol testimony or loose-leaf memoranda collected from other sources. The parties had the right to so contract, and since the provisions of the warranty are clear and unambiguous, we cannot disregard its provisions and by implication or otherwise construct “a new agreement, on the ground that the purposes which the parties intended to secure may have been unnecessary, or as well secured by other means.” Day v. Home Insurance Co., 177 Ala. 600, 58 So. 549, 40 L. R. A. (N. S.) 652.

It is unnecessary to here decide whether the stubs of the gin tickets, which were offered in evidence, would constitute a compliance with the record warranty if they contained a complete and correct record of the information required by the warranty. These stubs contain no record whatever of the amount of cotton or cotton seed sold, shipped, or removed from the gin plant, and in this respect they totally fail to meet the requirement of the warranty. From these stubs it would be entirely impossible for an accountant to ascertain, with any degree of accuracy, the amount of cotton or cotton seed on hand at the time of the fire. In so far as the cotton seed was concerned, the appellee attempted to supply this deficiency by introducing certain railroad bills of lading, and certain loose memoranda of weights which purported to have been issued by a cotton seed oil mill located at Greenville, Miss. This loose memoranda was not admissible as a substitute for the book required by the warranty to be kept. The appellee also undertook to avoid the consequences of his failure to comply with the record warranty by offering in evidence, without explanation as to its origin, a book containing a record of the cotton received and delivered; but, after it had been developed on cross-examination of the witness that this book had been entirely prepared after the fire, it was properly excluded.

We are of the opinion that the appellee failed to show a compliance with the record warranty contained in the policy contract, and that the peremptory instruction requested by the appellant should have been granted.

Reversed, and judgment for appellants.