Western Assurance Co. v. McGlathery

115 Ala. 213 | Ala. | 1896

BRICKELL, C. J.

A replication, answering a plea but in part, leaving a material part unanswered, is bad on demurrer. There must, however, be a material part of the plea unanswered, or there is no room or reason for the application of the rule. .The part of the second plea it is supposed the replication leaves unanswered, is a mere negation that the plaintiff kept the books, which under the clause of the policy set out in the plea, he was under the duty of keeping, in the precise manner and place prescribed in the clause. There is no denial that | the plaintiff kept the books, nor that they were preserved from loss or injury, ready to be produced for the inspection of the defendant, and as matter of evidence on the adjustment of the loss. The rule is elementaiy, that pleadings must be construed most strongly against I the pleader. If a plea admits of two constructions, thatl construction will be adopted least favorable to the I pleader. — 2 Brick. Dig., 232, § 32. The plea admits ofl the construction that the books were kept and preserved,! ready for production, though they may not have beenl kept in literal accordance with the clause of the policy.1 If this be true, unless substance be sacrificed to mere form and ideas to mere words, the duty of the plaintiff and all the purposes of the clause were satisfied. The defendant was as fully protected against the fraud or imposition of the plaintiff, as he would or could have been, if there had been literal compliance ; and it is his protection, the clause intends. The plea, in this respect, presented an immaterial issue, and the rule of pleading to which we have referred, does not require that a replication should answer matter on which a material issue can not be founded.

Tlie next question arising on the demurrers to this replication, is, whether the facts stated in the replication, showed that the plaintiff had satisfied the requirements of the policy in reference to the keeping of books, clearly and plainly presenting “a complete . record of business transacted, including all purchases, sales and shipments, both for cash and credit,” &c. The averments of the replication are brief. First, that there had been substantial compliance ; and second, that the plaintiff “had substantially kept a set of books from which the loss could have been ascertained.” The proper construction of the replication is, that the plaintiff had not kept a set of books, in precise and exact conformity to the requirements of the policy, but had kept books really and truly disclosing the facts from which the loss could have been ascertained. These facts could not have been disclosed, unless the books showed the purchases, and sales of goods whether for cash or on credit, aiid the shipments, if any were made ; and if these were shown, it is difficult to perceive what more the parties could have contemplated.

This'clause, now almost universally introduced into policies of insurance of merchandise^ kept for sale against loss by fire, has been of frequent consideration by the courts, and most usually, it has not been subjected to any narrowness or closeness of construction. Legal effect has been given it, for the purpose of guarding the insurer against the fraud or imposition of the insured ; but it has received a fair, reasonable interpretation, so that it may not work forfeitures, or defeat the claim of the innocent insured to the indemnity promised by the policy.—Liverpool, &c., Ins. Co. v. Ellington, 94 Ga. 785 ; Western Assurance Co. v. Redding, 68 Fed. Rep. 708; Standard Fire Ins. Co. v. Willock, 29 S. W. Rep. 218. In Liverpool Ins. Co. v. Ellington, supra, it is said by the court: “Under the clause referred to, it was not indispensable that the books kept should embrace what is usually termed a cash book, or that the books should be kept on any particular system. It was sufficient if •the books were kept in such manner that, with the assistance of those who kept them or understood the system on which they were kept, the amount of purchases and sales could be ascertained, and cash transactions distinguished from those on credit.” In Standard Ins. Co. v. Willock, supra, the court found a “substantial compliance” with .the requirements of the clause, and sustained a recovery against the insurer.-

If there must be precise, exact compliance with the clause, it would be difficult to determine and declare of what the compliance must consist. What is the degree of clearness and plainness, which must' be observed in the entries on the books? Is it that degree which will be satisfactory to an expert, scientific book-keeper? If so, what system of book-keeping, must be observed? There are rival systems of book-keeping, and the adepts in the one may regard the other as wanting in plainness and clearness. Or, is it the degree which will satisfy the -mind of the inquirer after the true state and condition of the business, not seeking to -work, or to avoid a forfeiture of the indemnity of the policy? How many books, and of what description will constitute a set? Can ’it be said or supposed, the minds of the insurer and the insured met, and would have given a common answer to these inquiries? Their minds did come together on the essence and substance of this clause, when its words are looked through, that ■ it was the duty of the ' insured to preserve in intelligible form, in one or more books of his own choice, written evidence of his purchases, of his sales, and of his shipments. If such evidence be preserved, the insurer is guarded against the.fraud and imposition of the insured, and this is the purpose to be accomplished. There is no literal, hypercritical interpretation of the words of any contract. In all cases, policies of insurance are liberally construed in favor of the insured, so as not to defeat without a plain .necessity his' claim to the indemnity, which, in making the insurance, it was his object to secure.” — 1 May on Ins. § 185.

The replication avers the offer of the plaintiff to produce the books, and the refusal of the defendant to receive them ;. thus placing the defendant in default, if it was not under the duty of demanding their production, .in the event an inspection of them was desired. There was no error in overruling the demurrer to the replication.

As we interpret the tenth plea, its gravamen is, that the plaintiff did not produce the inventory 'of stock •taken on the first of May, 1893, while admitting that an inventory-was'taken on the 25th day of December, 1893, the production of which is not negatived. The policy was issued on the eleventh day of January, 1894, and the last preceding inventory to which the clause refers, is obviously, that which was taken next preceding the issue of the policy. We know not any other construction or interpretation of which the words are susceptible. Insurance Co. v. Sheffy, 71 Miss. 919.

The stipulation in the policy for the examination of the insured, was intended for the protection and benefit of the insurer, and at his election, could be modified dr waived. — 2 May on Ins., § 464. If no notice was given the plaintiff to appear and submit to a personal examination, but notice was given her husband, and as her agent, he appeared and submitted to an examination, which are the facts stated in the replication to the eleventh plea, there was a waiver of the personal examination of the plaintiff, and there was no error in overruling the demurrer to the replication.

A majority of the court are, however, of opinion, that the demurrer to the second replication to the second plea ought to have been sustained. The reasoning on which they proceed, is, that the plea, after setting out the “iron safe clause,” averred as a breach, “that the plaintiff did not keep a set of books as therein provided.’ ’ The replication averred that “he had substantially kept a set of books from which the loss could have been ascertained, and averred that the plaintiff offered to produce books and evidence to meet the defendant’s demand for books claimed to be necessary, but defendant refused to allow plaintiff to do so or to receive such books and proof.” Under the practice which prevails in this State, parties have the right to frame their pleadings, and if issue be joined upon an insufficient plea, or an insufficient replication, they are responsible for the consequences. A replication to. a plea admits the legal sufficiency of the plea as a defense. Applying the rule that the pleadings must be construed most strongly against the pleader, the replication is insufficient. It avers that plaintiff “had substantially kept a set of books from which the loss could have been ascertained, and averred that the plaintiff offered to produce books and evidence to meet defendant’s demand for books claimed to be necessary,” &c. The latter clause of the replication avers that plaintiff “offered to produce books and evidence.” What books? Such as the stipulation in the policy required to be kept, or what books ? How much of the deficiency not furnished by the books was to be supplied by evidence, and what kind of evidence? The insufficiency of the replication, in this respect, was pointed out by the demurrer, and the demurrer should have been sustained.

For the error noted, the. judgment must be reversed and the cause remanded.