Robinson v. Aetna Fire Insurance

DOWDELL, J. Questions of law involved in this case were practically all settled when here on former appeal.—Robinson v. Aetna Ins. Co., 128 Ala. 477. There seems tq he no substantial difference between the evidence then and now. The evidence without dispute showed a breach of the “iron safe” clause contained in the policy sued on, and which avoided the contract unless there was a waiver of the breach. Under appropriate instructions, the question of waiver being one of fact, was submitted to the jury, and a verdict rendered in favor of the defendant. The breach of the “iron safe” clause was in the failure of the plaintiff, appellant here, to keep his inventories as provided in said clause, whereby said inventories were destroyed in the fire that occasioned the loss of the property insured. The first contention of counsel for appellant is, and we quote from brief of counsel, that “there was no for [659] feiture by tlie terms of the policy from the violation of the clause requiring the inventories to be kept in the iron safe, or other place not exposed to fire on the premises.” This contention is based upon the proposition that no demand was made upon the plaintiff by the company for an inspection of the inventories, and this proposition is rested upon that provision in the policy which reads as follows: “In the event of failure to produce such set of books and inventories for the inspection of the company this policy shall become null and void and shall constitute a perpetual bar to any recovery thereon.” The insistence is that a failure to produce must necessarily be predicated upon a demand made, and that it was not shown in evidence that any demand was made. The law never, requires the doing of a useless thing. It was shown by the plaintiff himself that the inventories were destroyed in the fire, and a demand to produce for inspection was thereby rendered useless and wholly unnecessary. Moreover, the defendant company had a right to stand on the warranty contained in the iron safe clause, and set up in bar of the suit a breach of that warranty without any demand to produce the books and inventories, where there was no waiver of such breach. The second contention in argument is, that at thé time of the loss under the policy a part of the premium on the policy Avas unearned, and that the company could not retain the unearned portion of the premium and at the same time claim a forfeiture of the policy. There is no merit in this contention. After the destruction of the property, the policy ceased to be a continuing insurance against loss by fire, and the stipulated amount of the insurance became a debt due to the insured unless the policy had been rendered invalid by reason of a breach of the terms of the contract on the part of the assured. There is no pretense of knowledge or notice to the company prior to the loss and while the policy remained a continuing insurance, of the plaintiff’s violation of the “iron safe” clause, and consequently no room for the application of the prin [660] ciple contended for, that a retention by the company of the unearned portion of the premium is inconsistent with a claim of forfeiture of the policy. There is nothing in the contract of insurance which required a repayment by the company to the assured of any portion of the premium after the policy ceased to be a continuing insurance by reason of the destruction of the property by fire, before it could set up as a defense the breach of warranty contained in the provision as to the books and inventories. Nor is any such condition imposed under any principle of law. There is nothing in the exceptions reserved to the court’s rulings on the admission of evidence. The evidence by Warren, that Warren & Stuart, as agents of the defendant company, had no other authority as such agents than that expressed in the commission was clearly relevant, and it was competent for the witness to so state, without any infringement of the rule as to stating- conclusions. It was equally competent for the witness to state that he had no authority as agent to" adjust losses, or to accept notice of loss of inventories It is not made to appear from the record that the statement involved a construction by the witness of the commission to the witness as agent. The court in the charges given at the request of the defendant, and in its refusal to charge, as requested hv the plaintiff acted in conformity with the lhw of the case as laid down on the former appeal and as herein above stated. We have carefully considered both the given and refused charges, and as there are quite a number of them, and since no purpose is to he sub-served by treating of them in detail, we content ourselves with what we have said above. We find no error in the record, and the judgment will be affirmed. [661] MEMORANDA OF Cases Decided During the Period Embraced in This Volume, W'hich abe Ordered not to be Reposted in Full.