American Insurance Company v. Haynie
| Decision Date | 07 June 1909 |
| Citation | 120 S.W. 825,91 Ark. 43 |
| Parties | AMERICAN INSURANCE COMPANY v. HAYNIE |
| Court | Arkansas Supreme Court |
Appeal from Nevada Circuit Court; Jacob M. Carter, Judge; affirmed.
STATEMENT OF THE COURT.
On the 15th day of October, 1906, the American Insurance Company, in consideration of the sum of eighteen dollars, insured L. B Haynie for the term of 3 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 sad 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:
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:
COL=1 POS=CARTICLES 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
12.00
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
COL=1 POS=CARTICLES SAVED.
1 Dresser
$ 4.00
1 Machine
8.00
1 Trunk
4.00
1 Set Bed Springs
2.00
8 Quilts
12.00
1 Feather Bed
5.00
Wearing Clothes
10.00
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. 20, 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 enclosed 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 denied 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, and on personalty $ 150; also we further find 12 per cent. penalty, $ 72."
From the judgment entered on the verdict the defendants have duly appealed to this court.
Judgment affirmed.
C. P. Harnwell, for appellants.
1. The statement mailed to the company by appellee is in no sense a compliance with the requirements of the policy as to proof of loss, and amounts to nothing more than a notice that a fire occurred. The burden of proof was on plaintiffs to show that proof of loss was made out and filed with the company within the time limited by the policy. 77 Ark. 84; 84 Ark. 224; 85 Ark. 337; 87 Ark. 171; 88 Ark. 120.
2. The policy was written October 15, 1906, and the bond sued on was not executed until May 7, 1907. There is no liability against the bondsmen. There was in no event any liability upon the bond, the same being, not an indemnity bond, but merely a fidelity bond for the faithful performance of duty by the officers of the company. Acts 1905, pp. 490-496; Kirby's Dig., §§ 4348, 4380; 92 U.S. 259; 100 U.S. 239; 74 U.S. (7 Wall.) 482; 80 U.S. (13 Wall.) 162; 11 Cal. 222; 97 U.S. 546; 80 Ala. 379; 83 Ky. 162; 108 Ind. 308; 150 N.Y. 139; 35 Ark. 56; 26 Cal. 11; 9 La. An. 165; 44 Mo. 283; 3 Ohio 198; 94 Pa. 450; 28 Vt. 354; 81 Mo. 574; 122 Ind. 69; 60 Wis. 133; 5 L. R. A. 340.
Hamby & Haynie, for appellees.
1. That the proof of loss was given within the time limit is clearly shown by the evidence. Substantial compliance by the assured with the terms and conditions of the policy is all that is required. Kirby's Dig. § 4375. Knowing that the statement furnished was intended as a proof of loss, appellant, not having objected, should be held to have waived forfeiture. 53 Ark. 499.
2. No exceptions having been saved to instructions given at appellees' request, appellant will not be heard to question them here. 73 Ark. 409.
3. The bondsmen were properly joined in the action. Kirby's Dig. § 4376. And the contention that the bond is not an indemnity, but a fidelity, bond is contrary both to the law and the facts. Act 129, Acts 1905, § 2. The sureties are not relieved of liability because the bond was executed subsequent to the issuing of the policy, as appears by the terms of the bond. 76 Ark. 410.
OPINIONHART, J. (after stating the facts).
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 Misenheimer v. State, 73 Ark. 407, 84 S.W. 494, the court said: See also Cammack v. Southwestern Fire Ins. Co., 88 Ark. 505, 115 S.W. 142.
Hence by the rules of practice appellants waived their objection 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 appellant 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 thirty 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 the fire, then said policy becomes inoperative and void because of such non-compliance by plaintiffs, and plaintiffs will not be entitled to any recovery, and you must find for the defendants."
This instruction should not have been given. It directly and plainly made the verdict depend upon the proposition stated in it, and excluded all other issues. St. Louis, I. M. & S. Ry. Co. v. Smith, 82 Ark. 105, 100 S.W. 884; Aluminum Company of...
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