Aetna Ins. Co. v. Warren

• Decision Date: 14 December 1959
• Docket Number: No. 5-1961,5-1961
• Citation: 329 S.W.2d 536,231 Ark. 405
• Parties: AETNA INSURANCE COMPANY, Inc., Appellant, v. Opal WARREN, Administratrix of Estate of Tom B. Warren, Deceased, d/b/a Bon Ton Cleaners, and Mrs. Callie M. Harp and Sara Harp, Appellees.
• Court: Arkansas Supreme Court

Page 536

329 S.W.2d 536

231 Ark. 405

AETNA INSURANCE COMPANY, Inc., Appellant, v. Opal WARREN, Administratrix of Estate of Tom B. Warren Deceased, d/b/a Bon Ton Cleaners, and Mrs. Callie M. Harp and Sara Harp, Appellees.

No. 5-1961.

Supreme Court of Arkansas.

Dec. 14, 1959.

Dickson, Putman & Millwee, Fayetteville, for appellant.

James R. Hale, Fayetteville, Crouch, Jones & Blair, Springdale, for appellees.

WARD, Justice.

We are concerned on this appeal with the construction of certain language contained in a fire insurance policy issued by the appellant, Aetna Insurance Company, Inc., hereafter called 'Aetna', to the Bon Ton Cleaners, hereafter called 'Cleaner', one of the appellees herein.

On June 18, 1951, Aetna issued to Cleaner a customer goods policy which insured for the account of whom it may concern 'all kinds of lawful goods and articles accepted by the assured for cleaning, renovating, pressing, repairing or dyeing, being the property of its customers while contained on the premises occupied by the assured', against loss from fire, etc. Upon the death of the owner of Cleaner the policy was endorsed to his widow who is also the administrator of his estate. The premium to be paid by Cleaner was based on gross receipts at the rate of 50cents per $100. On July 21, 1957, a fire of unknown origin occurred on Cleaner's premises and damaged or destroyed, among other things, certain articles belonging to Callie M. Harp and Sara Harp, her daughter.

Mrs. Harp and her daughter brought suit against Aetna to recover their damages. Upon trial and at the end of all of the testimony of both sides the trial court directed a verdict against Aetna for the value of the clothes, penalty and costs. Hence, this appeal.

It appears to us that there are two questions that must be considered and disposed of. One: When the court directed a verdict was it acting as a jury or was it passing solely on a matter of law; and, Two: Was the trial court's action correct as a matter of law?

One. It is appellees' position (as indicated by the argument in their brief) that since both sides asked for a directed verdict the trial court, acting according to the recognized rule, sat as a jury to try issues of fact. Such a rule has been adopted by this Court. See General Contract Purchase Corporation v. Row, 208 Ark. 951, 952, 188 S.W.2d 507, and National Garages v. Barry, 217 Ark. 593, 232 S.W.2d 655.

We have concluded, however, that because of the peculiar facts of this case the rule above mentioned does not apply. Here, after appellees had finished with their testimony and had rested, appellant moved the court for an instructed verdict. This motion was overruled at that time and appellant saved its exceptions. After this had transpired appellant announced that it also rested. Then appellees moved for an instructed verdict, whereupon the trial court directed the jury to render a verdict in favor of appellees, instructing one of the jurors to sign it. In the first place it seems apparent from the wording of the trial court's judgment that it did not rely upon the rule above mentioned and did not intend to try issues of fact because no mention is made of appellant's request for an instructed verdict. Moreover, a careful analysis of the cases cited above shows that the above mentioned rule is founded on the nature of an agreement between the parties themselves that the trial court shall sit as a jury and try issues of fact. It would seem necessary, therefore, that the trial court should have both requests for an instructed verdict before it at the same time. In this case, of course, appellant's request had already been denied and disposed of by the trial court before appellees' motion was made. It is not unusual, we think, for a defendant to request an instructed verdict at the close of the plaintiff's testimony. After doing so, such defendant would have the choice of putting on its own testimony or to rest its case and go to the jury on the testimony developed by the plaintiff. It would seem only fair that the appellant should have this choice in the case under consideration. Therefore, if any question of fact which raises a jury question is presented in the case under consideration appellant should not be denied to have such question presented to the jury.

Two. After very careful consideration of the problem presented here and after careful reading of the briefs on both sides and also the record in the case we have come to the conclusion that a fact issue is presented. There are two clauses in the insurance policy which deserve special attention. The first one is Section 2 of the rider attached to the policy and is designated 'Customer Goods Policy'. This section purports to state what goods are covered and reads as follows: 'All kinds of lawful goods and articles accepted by the assured for cleaning, renovating, pressing, repairing of dyeing'. The second provision is Section 5 of the said rider, under the heading of 'Special Conditions'; which reads: 'Goods held by the assured without instruction from the owners to hold on storage shall not be considered as being held on storage'.

Cleaner's place of business was operated in one long building with no separate building or separate compartment of the building which was used exclusively for storage. However, the testimony shows that Cleaner did have certain racks set aside in the building where clothes were held in moth-proof bags for varying lengths of time, as distinguished from the place where they kept clothes which had been processed and which normally would be called for within two or three days. There is testimony in this case to the effect that when Mrs. Harp brought her clothes to Cleaner on June 1st and June 15th that she instructed Cleaner to process the clothes, place them in moth-proof bags and hold until Fall. There is other testimony to the effect that Mrs. Harp's instructions to Cleaner were that the merely told them to process the clothes and hold them until she called for them. Appellant's Exhibit No. 2 is a ticket or receipt made out to Mrs. Harp, dated June 1, 1957, showing the articles of clothing left by her at Cleaner's place of business. On this ticket appears this notation 'M Proof,...