American Fire Ins. Co. v. Haynie

• Decision Date: 07 June 1909
• Parties: AMERICAN FIRE INS. CO. et al. v. HAYNIE et al.
• Court: Arkansas Supreme Court

120 S.W. 825

AMERICAN FIRE INS. CO. et al. v. HAYNIE et al.

Supreme Court of Arkansas.

June 7, 1909.

Appeal from Circuit Court, Nevada County; Jacob M. Carter, Judge.

Action by L. B. Haynie and others against the American Fire Insurance Company and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

On the 15th day of October, 1906, the American Insurance Company, in consideration of the sum of $18, insured L. B. Haynie for the term of three years, against loss by fire, for $450, on a dwelling house, in the town of Bodcaw in Nevada county, Arkansas, for $100 on his household and kitchen furniture, and $50 on an organ, contained in his said dwelling house. On the 29th day of October, 1907, the building, with most of its contents, was destroyed by fire. This suit was brought by Haynie against the insurance company and the sureties on its bond in the Nevada circuit court to recover the loss. The insurance company answered, admitting the issuance of the policy and the destruction of the property by fire, but denied that the insured notified the company of his loss, or that he filed a proof of loss within 30 days in conformity with the requirements of the policy. It admitted that on May 7, 1907, a bond for $15,000 was filed by it in the office of the Auditor of State in compliance with Act No. 192 of the General Assembly of the State of Arkansas of 1905, but denied that its said sureties are liable on the claim sued on, and "alleges the facts and truth to be that the policy sued on herein was issued and delivered to plaintiff on or about the 15th day of October, 1906, and that said bond alleged to have been made on the 7th day of May, 1907, by defendant and said sureties, was not in existence or in force at the time said policy was issued." The sureties on the bond first filed a plea in abatement, but by permission of the court withdrew it, and adopted as their answer the answer of the insurance company. All parties then announced ready for trial, and the case was tried before a jury.

L. B. Haynie testified: That he was the holder of the policy sued on, and that the fire occurred on the 29th day of October, 1907. That the morning after the fire he asked one Isham Mack to notify the insurance company of the fire, and, pursuant to his request, Mack wrote and mailed to the company, the following letter: "Bodcaw, Ark. 10/30/07. American Insurance Co., Little Rock, Ark. — Gentlemen: By request of L. B. Haynie of this place who holds policy No. 14,081 in your company covering his Dwg. & H. H. goods, I write to inform you that his house and most of the contents was destroyed by fire last night. Please send the adjuster for your company and oblige. Yours respectfully, I. H. Mack." That within 30 days after the fire occurred, intending to comply with the requirements of the policy he made out and swore to the following paper:

                               "Articles Burnt
                15 Quilts ............................ $ 37 50
                4 Cotton Mattresses ..................   12 00
                10 Chairs ............................    5 00
                1 Chair, Rocker ......................    2 00
                1 Bureau .............................    7 50
                1 Safe ...............................    2 50
                Dishes and Glassware .................   12 50
                1 Cook Stove .........................    7 50
                4 Tables .............................    4 00
                1 Book Case and Books ................    5 00
                3 Bedsteads ..........................   12 00
                1 Set Bed Springs ....................    2 00
                6 Pictures Enlarged ..................   16 00
                Mechanic Tools .......................   15 00
                Canned Goods, Groceries ..............   25 00
                Clothing .............................   40 00
                Organ ................................   75 00
                                                       _______
                   Total ............................. $280 00
                                "Articles Saved
                1 Dresser ............................ $  4 00
                1 Machine ............................    8 00
                1 Trunk ..............................    1 00
                2 Beds. Cotton .......................    4 00
                1 Set Bed Springs ....................    2 00
                8 Quilts .............................   12 00
                1 Feather Bed ........................    5 00
                Wearing Clothes ......................   10 00
                                                       _______
                   Total ............................. $ 46 00
                

                                     "[Signed] L. B. Haynie
                

"I, J. M. Hairston, a duly commissioned justice of the peace, do hereby certify that the above is a true statement of property burned and saved to the best of my judgment. Nov. 20th, 1907.

                        "[Signed] J. M. Hairston, J. P."
                

That he intended it for a proof of loss and mailed it at once to the insurance company at Little Rock, Ark. That in the same envelope, but on a separate sheet of paper, he inclosed a statement in writing about the origin of the fire and when it occurred. That no answer was received from the insurance company. The insurance policy and the bond were read in evidence.

The defendants introduced as a witness E. Miles, the secretary of the company. He admitted receiving the letter from I. H. Mack, and the list of "articles burnt" and "articles saved" copied above, but denies receiving the statement about the origin of the fire and where it occurred.

The jury returned into court the following verdict: "We, the jury, find for the plaintiff on house in the sum of $450.00, and on personalty $150.00; also we further find 12 per cent. penalty, $72.00." From the judgment entered on the verdict, the defendants have duly appealed to this court.

C. P. Harnwell, for appellants. Hamby & Haynie, for appellees.

HART, J. (after stating the facts as above).

1. At the request of the appellee, the court instructed the jury that the law did not require him to furnish the insurance company with a proof of loss in order to recover the amount due for the destruction of his house by fire. This instruction was erroneous. It has been expressly held by this court that in such cases the failure to present the proof of loss within the time prescribed by the terms of the policy works a forfeiture of the right to claim anything on the policy. Teutonia Insurance Co. v. Johnson, 72 Ark. 484, 82 S. W. 840; Arkansas Mutual Fire Insurance Co. v. Clark, 84 Ark. 224, 105 S. W. 257; Minneapolis Fire & Marine Mutual Ins. Co. v. Fultz, 72 Ark. 365, 80 S. W. 576. But appellants are in no attitude to complain of any of the instructions given by the court at the instance of the appellee. The record shows that the instructions were given over their objections; but it also shows that appellants did not save any exceptions to the action of the court in giving any of the instructions asked by the appellee. In the case of Meisenheimer v. State, 73 Ark. 407, 84 S. W. 494, the court said: "An objection precedes an exception. The objection calls for a ruling by the trial court, and the exception directs attention to and fastens the objection for a review on appeal. If a party does not follow the ruling on his objection by clinching it with an exception, he waives the objection." See, also, Cammack et al. v. Southwestern Fire Ins. Co. (Ark.) 115 S. W. 142. Hence by the rules of practice appellants waived their objections to the instructions given at the instance of the plaintiff by not excepting to the ruling of the court in giving them, and they are not before us for review.

2. Counsel for appellants also contends that the court erred in refusing instruction No. 3 asked by them. The instruction recites the clause in the policy with regard to the proof of loss, and tells the jury that it was the duty of appellee to comply with the provisions thereof, and that if he did not, "within 30 days after the fire, make out and deliver to defendant company a proof of loss, signed and sworn to by plaintiff, stating his knowledge and belief as to the origin of the fire, the time of the fire, plaintiff's interest, and the interest of all others in the property destroyed, the cash value of each item destroyed and the amount of the loss thereon, all incumbrances thereon, all other insurance covering said property, all schedules and descriptions in said policy, any change in the use, title, occupation, location, possession, or exposure of said property, by whom occupied and for what purpose the building insured was occupied, at the time of...