National Fire Insurance v. Hornbuckle , 47 Ga. App. 762 ( 1933 )

Broyles, C. J.

Under tbe rulings in headnotes 1 and 2 (repeatedly announced by the Supreme Court and this court), the assignments of error on the exceptions pendente lite will not be passed upon.

This was a suit bn a policy of fire-insurance covering a stock of goods and store furniture and fixtures of the plaintiff. The policy contained, among other provisions, the warranty known as the “iron-safe clause.” The petition alleged that the plaintiff had complied with all the conditions of the policy. The defendant’s answer averred that the plaintiff had not complied with the “iron-safe clause” of the policy, which is as follows: “ Warranty to keep books and inventories, and to produce them in case of loss. The following covenant and warranty is hereby made a part of this policy: 1. The assured will take a complete itemized inventory of stock on hand at least once in each calendar year; and unless such inventory has been taken within twelve calendar months prior to the date of this policy, one shall be taken in detail within thirty days of issuance of this policy, or this policy shall be null and void from such date, and upon demand of the assured the unearned premium from such date shall be returned. 2. The assured will keep a set of books which shall clearly and plainly present a complete record of business transacted, including all purchases, sales and shipments, both for cash and credit, from date of inventory, as provided for in the first section of this clause, and during the continuance of this policy. 3. The assured will keep such books and inventory, and also the last preceding inventory, if such has been taken, securely locked in a fireproof safe at night, and at all times when the premises mentioned in this policy are not actually ■open for business or, failing in this, the assured will keep such books and inventories in some place not exposed to a fire which would destroy the property hereby insured. In the event of failure to produce such set of books and inventories for the inspection of this company, this policy shall become null and void, and such failure shall constitute a perpetual bar to any recovery thereon.” On the trial the undisputed evidence showed that no proper set of books was kept by the plaintiff, that no inventory was taken by him within thirty days after the issuance of the policy, and that the inventory taken within twelve • calendar months prior to the date of the policy was not produced for the inspection of the insuranee company, but had been left out of the safe and destroyed in the fire. The evidence demanded a finding that the plaintiff had failed to comply with the provisions of the “iron-safe clause” of the policy, which required him to “keep a set of books which shall clearly and plainly present a complete record of business transacted, including all purchases, sales and shipments, both for cash and credit, from date of inventory;” and that he also failed to comply with the provisions of the clause which required him to keep the last preceding inventory securely locked in a fireproof safe at night, and at all times when the premises were not open for business, or to keep it in some place not exposed to a fire which would destroy the property insured, and to produce it for the inspection of the insurance company. Nor does the record contain any evidence showing or tending to show that, because of some emergency (as in Liverpool &c. Co. v. Kearney, 180 U. S. 132, (21 Sup. Ct. 326, 45 L. ed. 460), the inventory was left out of the safe or otherwisé lost or destroyed.' It follows that the verdict in favor of the plaintiff was unauthorized by the evidence, and that the court erred in refusing to grant a- new trial. See Clark v. Fire Association of Philadelphia, 31 Ga. App. 3, and cit. In view of the foregoing ruling, which controls the case, the special grounds of the motion for a new trial are not considered.

Judgment reversed.

MacIntyre and Guerry, JJconcur.