#### Connecticut Fire Insurance Company v. Boydston.

Opinion delivered April 4, 1927.

*440 Mardis & Mardis and R. Lee Bartels, for appellant.

Hawthorne, Iiaivihorne <& Wheatley, for appellee.

Hart, C. J.,

(after stating the facts). It is the contention of counsel for the plaintiff that the forfeiture of the policy occasioned by the failure of the plaintiff to comply with the record warranty clause was waived when, after the loss by fire occurred, the adjuster, with knowledge that the plaintiff had failed to comply with the conditions of the policy with regard to keeping his books and inventory locked in a fireproof safe when the store was not open for business, required the plaintiff to be put to the trouble and expense . of going from Tyronza, in Poinsett County, where the fire occurred, to Jonesboro, in Craighead County, for the purpose of being examined *441under oath with regard to the conditions of the policy. It is the settled law of this State that any condition inserted in a policy-for the benefit of the insurer may be waived by it, and that an insurance agent authorized to waive a forfeiture in a policy may do so orally, though the policy provides that the waiver must be indorsed on the policy. German-American Ins. Co. v. Humphrey, 62 Ark. 348, 35 S. W. 428; Phoenix Ins. Co. v. Public Parks Amusement Co., 63 Ark. 187, 37 S. W. 959; Queen of Arkansas Ins. Co. v. Forlines, 94 Ark. 227, 126 S. W. 719; and Queen of Arkansas Ins. Co. v. Malone, 111 Ark. 229, 163 S. W. 771.

It is also settled by these decisions that an adjuster with the authority of the adjuster in this case may waive the performance of the conditions of the policy. But it is contended 'by counserfor the defendants that, under the provisions of the non-waiver agreement, there .was no waiver of the conditions of tire policy in respect to the issue involved in this case. We have set out the non-waiver agreement in our statement of facts,-and do not deem it necessary to repeat it here. It specifically states that it was the intention of the parties to provide for an investigation of and a determination of the loss or damage only. By its terms it merely gives the adjuster or any other representative of the company the right to investigate and ascertain the cause of the fire and the loss or damage to the property, without being in any danger of waiving any rights under the policy. The rights of the plaintiff and the defendants were settled by the terms of the policy when the fire occurred and the property was damaged or destroyed by the fire. The parties simply agreed that no waiver of the terms of the policy should be implied from an investigation of the cause of the fire and of the amount of the loss or damage to the property insured. The non-waiver agreement was written by the adjuster of the companies, and its. stipulations and agreements, like the provisions of the policy, should be considered strictly against the insurer and liberally in favor of the insured. Penn. Fire Ins. Co. v. *442 Draper, 187 Ala. 103, 65 So. 923; Tinsley v. Ætna Ins. Co., 199 Mo. App. 693, 205 S. W. 78; Modlin v. Atlantic Fire Ins. Co., 151 N. C. 35, 65 S. E. 605; Beaucamp v. Retail Merchants’ Assn. M. F. I. Co., 38. N. D. 483, 165 N. W. 545; German Alliance Ins. Co. v. Ft. Worth G. & E. Co. (Tex.), 257 S. W. 273; Springfield F. & M. Ins. Co. v. Fine, 90 Okla. 101, 216 Pac. 898: Henderson v. Standard F. I. Co., 143 Ia. 572, 121 N. W. 714; Corson v. Anchor Mut. F. I. Co., 113 Ia. 641, 85 N. W. 806; McMillan v. Ins. Co. of N. A., 78 S, C. 433, 58 S. E. 1020; and German Ins. Co. v. Allen, 69 Kan. 729, 77 Pac. 529.

The non-waiver agreement is, by its terms, limited lo investig'ating the cause of the fire or ascertaining the amount-of the loss .and damage to the property caused by the fire. It contemplated action on the part of the companies and gave them the lull right lo make such investigation, through its adjusler or claim agent, or in any other way, it might, deem proper. In the present case, however, the .plaintiff was required to go from his residence and place of business lo another city for the purpose of being examined under oath. He was thereby put to trouble and expense which, under the authorities we have cited above and many others which might be cited, show that the company waived the conditions of the policy with regard to the record warranty clause. If the insurance companies wished to avoid a waiver or forfeiture of the policy because the insured had not complied with the record warranty clause, they should not have required him to he put to the trouble and expense of going to Jonesboro for examination under oath. They knew all the facts with regard to the non-compliance to the record warranty clause that they could know from an examination under oath. In other -words, they knew, before they required the plaintiff to go to Jonesboro for examination under oath, that he had not complied with the record warranty clause and that they had a right, under the terms of the policy, to forfeit it for that reason. The plaintiff had a right to assume that they had -waived any forfeiture on this ground, and that he was required *443to go to Jonesboro to be examined as to tlie cause of tlie fire and the amount of loss sustained by him. The undisputed evidence shows that the lire did not originate in the store of the insured and that he did not in any manner, directly or indirectly, aid or have anything to do with starting the fire. It originated from causes with which he had nothing whatever to do. At the trial of the case the plaintiff introduced his inventory and duplicate invoices,_of goods received since the taking of the inventory. He also produced his bank book, showing the amount of his cash sales, and, in every way possible, attempted to make a correct estimate of the amount and value of the goods destroyed by fire. As we have already seen, he had a right to assume that this was the purpose of requiring him to go to Jonesboro for examination under oath; and, under the terms of the 11011-waiver agreement, there was nothing to prevent the insurer from waiving any grounds of forfeiture which it knew about before such 11011-waiver agreement was executed.

Again, it is insisted that the act of the companies in requiring the plaintiff to go to Jonesboro for examination does not waive any ground of forfeiture, because, under the terms of his policy, the plaintiff was required to submit to examination under oath. As we have already seen, these conditions were written in the policy by the insurer, and should be construed liberally in favor of the insured. Lord v. Des Moines F. I. Co., 99 Ark. 476, 138 S. W. 1008, and Great Southern F. I. Co. v. Burns, 118 Ark. 22, 175 S. W. 1161, L. R. A. 1916B, 1252 Ann. Cas. 1917B 497.

Here again we refer to our statement of facts for the exact provisions of this clause of the policy. It is fairly inferable that the parties had in mind an examination of the stock of goods and of the insured himself under oath in order to ascertain whether or not he was over-insuring his stock of goods. This is shown bv providing that he should submit to such examination as often as required, or that the property should be examined as often as deemed necessary. If, by this provision, it *444bad been meant to provide for an examination after tbe fire, it would bave been very easy for tbe policy to bave provided that, in case of loss by fire, tbe boobs of tbe plaintiff should be open to tbe insured, or that tbe plaintiff should submit to an examination for tbe purpose of ascertaining tbe cause or extent of tbe loss. Such was tbe case in Phoenix Insurance Co. v. Flemming, 65 Ark. 54, 44 S. W. 465, 39 L. R. A. 789, 67 A. S. R. 900. If tbe insurance companies wished tbe policy to contain a provision requiring’ tbe insured, as often as demanded, to submit to examination under oath relating to all matters material to tbe adjustment of tbe loss, it should bave used language which plainly meant that, instead of using language which was susceptible of a construction that it was to apply to tbe policy while it was running instead of after tbe loss bad accrued.

Counsel for tbe defendant also seek a reversal of tbe judgment on tbe ground that, tbe court erred in the admission of evidence to tbe jury. It is elementary that any competent evidence is admissible to prove the extent or amount of tbe loss for which tbe defendant-is liable, which'tends to prove that fact. Tbe object of tbe clause requiring tbe plaintiff to keep an inventory, including invoices of the goods purchased since bis last inventory, and a book containing a record of bis sales, was to enable tbe insurer to have record evidence upon which it might adjust tbe loss after the fire. Tbe evidence on the part of tbe plaintiff shows that such a record was kept by him. Tbe invoices and tbe books showing the sales made were destroyed when tbe fire occurred. As we have already seen,'tbe fire was communicated to tbe property from other buildings, and tbe plaintiff was in no wise at fault in tbe matter. By inadvertence he bad omitted to put bis books in tbe iron safe that night, and they were destroyed when bis goods were burned. Proof of these facts was sufficient to let in secondary evidence. Arkansas Mutual Fire Ins. Co. v. Woolverton, 82 Ark. 476, 102 S. W. 226. The plaintiff found tbe last inventory which be had taken at tbe house of bis son, after tbe *445fire. He-obtained duplicate copies of the invoices of the goods purchased by him since his last inventory. He obtained from the bank an account of his cash sales. From the testimony of himself and other merchants, who were familiar with his stock of goods and the prices of same, he made as near an estimate as possible of the value of "the goods at the time of the fire. This was the best evidence obtainable after it was shown that the record had been burned, and the court properly admitted it to go before the jury to establish the extent of the loss.

We find no reversible error in the record, and the judgment will therefore be affirmed.