169 Ill. 626 | Ill. | 1897
delivered the opinion of the court:
It is urged by appellee that this court cannot consider this appeal, for the reason that no motion for new trial, together with an exception of defendant to the overruling thereof, is shown in the record. No motion for new trial is necessary where the case has been tried by the court without a jury, and in such'case it is only necessary that the record show an exception to the judgment. (Illinois Central Railroad Co. v. O'Keefe, 154 Ill. 508; Firemen's Ins. Co. v. Peck, 126 id. 493.) The only question therefore properly presented for the consideration of this court is, whether or not there was error in the action of the trial court in sustaining the demurrer to the special pleas filed by the defendant.
One of the provisions of the policy was, that the insured should keep books of account, correctly detailing purchases and sales of stock, and should keep all inventories and books securely locked in a fire-proof safe, or other place secure from fire, in his store during the hours when the store was closed for business; and it was further provided that a failure to observe the above conditions should work a forfeiture of all claims under the policy. The provision is a reasonable one, and appellee having contracted by his policy of insurance to observe it, it was such provision as was necessary to be fulfilled by him, and the failure so to do, with an intention to defraud the insurance company, would result in the forfeiture of his contract of insurance. In Niagara Fire Ins. Co. v. Brown, 123 Ill. 356, where the same clause in the policy issued was in question, it was held by this court that such provision had been waived by the agent of the insurance company, but inferentially this court held that such a warranty on the part of the assured was binding upon him if not waived by the company. In this case there was no question of waiver. The plea filed by defendant set up as an absolute defense, failure of the insured to observe this provision of the policy, and a failure on his part so to do with an intent to defraud defendant. Whatever the proof might have shown, the plea was a proper one. An insurance company has the right to require the one it insures, who is carrying, on a mercantile business, to keep books of account correctly detailing purchases made by him which make additions to such stock, and also books which show sales decreasing the amount of such stock, and that he shall keep such books in a secure place, ready to be produced in the event of a loss by fire, so that the amount of his loss can readily be ascertained. This provision is not unreasonable, and where the insured, with the full knowledge of the conditions of the policy, enters into a contract of this character, it is a provision with which he must comply. A plea setting up a failure on the part of the insured to comply with a reasonable provision of this character is a proper plea, and presents, when established, a defense in bar.
Another plea set forth as a bar to the action is, that the insured refused to submit his books and invoices for examination when requested. This plea was based upon one of the conditions of the policy to which the plaintiff assented. All the insured was entitled to recover, in the event of a loss, was pay for goods actually destroyed. Books of account and invoices are the only means, in most cases, of arriving at such amount and of the liability of the company. Where an insurance policy makes it incumbent on the insured, in the event of a loss, to produce his books or invoices for examination, he must comply with such provision or he cannot recover. Jube v. Insurance Co. 48 Barb. 412; Haff v. Insurance Co. 4 Johns. 132; O’Brien v. Insurance Co. 63 N. Y. 108; Phillips v. Insurance Co. 14 Mo. 220; Bonner v. Insurance Co. 13 Wis. 677; Harris v. Insurance Co. 35 Conn. 310; Thomas v. Insurance Co. 47 Mo. App. 169.
It is urged by appellee as a reason for not complying with this provision, that he kept no books of account. But that is not a sufficient legal avoidance of this condition. A policy of insurance is merely a contract between the insurer' and the insured, whereby the insurer contracts, under certain conditions, to pay to the insured, in the event of. a loss, a certain amount of money, and the insured on his part contracts to observe certain conditions and provisions in the policy or contract of insurance. If the insured seeks to recover, on the ground of a loss, under the conditions of the policy of insurance, he must also show he has observed the conditions imposed upon him, or show some waiver thereof upon the part of the insurer, or some sufficient reason why such conditions imposed upon him have not been complied with. In this case the insured obligated himself to produce his books of account and invoices, so that, in the event of a loss, the insurance company might have before it some evidence of the amount of loss sustained by him. This condition contracted by him to be observed was a reasonable one, and a failure on his part to comply therewith, without some excuse therefor, presented a sufficient defense by appellant, which it could only set up by way of special plea. The plea of the appellant, therefore, which set up this defense, was a proper one, and the demurrer to it should have been overruled.
It is unnecessary to discuss errors assigned on the sustaining by the trial court of the demurrer to other special pleas, as those discussed are conclusive.
The demurrer to the special pleas should have been overruled, and for the error of the trial court in sustaining the demurrer, and of the Appellate Court for the Fourth District in affirming the judgment of the circuit court, the judgments of the circuit and Appellate Courts are both reversed, and the cause remanded to the circuit court of Massac county for a new trial in conformity to the views expressed in this opinion.
Reversed and remanded.