Sneed v. British-America Assurance Co.

Woods, J., delivered the opinion of the court. The second plea filed by the appellee denies liability on its policy of insurance sued on, because, by the terms thereof, the insured covenanted that he would keep his books and inventories in a fireproof safe, and would, in the event of the loss of the property insured, by fire, produce the books and inventories for the inspection of the insurer, and that the insured had failed to perform these conditions, and had failed to produce his books and inventories, whereby the policy became void. To this the insured replied that he did keep his books and inventories in a fireproof safe, as agreed upon in the policy of insurance, but that, without fault on his part, the safe and its contents were destroyed by the fire which consumed the insured property, by reason whereof he was unable to produce the books and inventories. On motion of the assurance company, this replication was stricken out, and, by leave of the court, an amended replication was filed (substantially setting up the reply contained in the replication). This amended replication.was also stricken out on motion, and final judgment entered against appellee, and from this judgment this appeal was taken. [282] The replications, fairly construed, must be held to mean that the insured did keep the books and inventories in a fireproof safe, and that he did not produce these books and inventories so kept, because, without fault on his part, they had been destroyed by the fire which consumed the insured property, while in the safe, and it had thereby become impossible to produce them for the inspection of the insurer. The contention of counsel for the insurer is, that having covenanted to keep the books in a fireproof safe, and, in the event of the loss by fire of the property insured, thereafter, to produce them before the insurer, the insured was absolutely bound to produce the books, and that no casualty can excuse any failure to comply with this condition to produce the books. That this contention is unsound is readily demonstrable. If, in this very case, the insured’s fireproof safe had been blown open by cracksmen, and its money contents stolen, and, to cover the crime, or by any agencies resorted to by the burglars, the insured property had been set on fire and consumed, whereby the safe and the books and inventories contained in it had been destroyed by the same fire, would any reasonable man hold that the insured would not be excused from producing the books ? The true rule must be that ordinarily the books must be produced, for, ordinarily, that would be within the power of the person who had undertaken such production; but the complement of this rule must be true also, viz., that an extraordinary and unforeseen conjuncture of circumstances which puts the production of the books beyond the reach of the insured, without fault on his part, must relieve from the performance of an impossible act. The definition of the fireproof safe clause in the policy, contended for by the assurance company, is too literal. For the purposes of every day life, these words can mean nothing more than a safe composed of materials incombustible, or materials which by their nature are fitted to resist the action of fire. To impart to the words ‘‘ fireproof safe ’ ’ such significa [283] tion as would require a safe incapable of injury by fire, to itself or its contents, or one which by the action of any fires could not be rendered useless, as a safe, and whose contents, under any combination of circumstances, should and could never be destroyed by the intensity of heat to which the safe and its contents might be exposed, would be to require of the insured, in the vast majority of insurance cases, that which could not have been in the contemplation of the parties in entering into the contract of insurance. The words ‘ fireproof safe ’ ’ in this policy, in view of the situation of the small country merchant, and his needs for and employment of an iron safe, can only mean the usual fireproof safe used by the country generally — a safe composed of incombustible materials, and fitted to protect, to the usual extent and in the ordinary way, books and papers deposited therein, and not that rare and costly structure (if, indeed, such there be) which is capable of successfully withstanding the action of fire altogether, and of preserving its contents from harm absolutely. The action of the court in striking out the first replication was error, for it fairly raised a question on the merits which was determinable alone by the evidence which might have been submitted to support it. Reversed and remanded.