Burlington Ins. Co. v. Lowery

• Decision Date: 12 October 1895
• Parties: BURLINGTON INS. CO. v. LOWERY.
• Court: Arkansas Supreme Court

32 S.W. 383

BURLINGTON INS. CO. v. LOWERY.

Supreme Court of Arkansas.

October 12, 1895.

Appeal from circuit court, Garland county; Alexander M. Duffie, Judge.

Action by M. M. Lowery against the Burlington Insurance Company on a fire policy. Judgment for plaintiff, and defendant appeals. Reversed.

This is an appeal from a judgment for $1,000 against the appellant upon a policy of fire insurance upon a dwelling house of the appellee, which was consumed by fire while the policy was in force. The defenses to the action are: First, failure of the appellee to give notice of the loss; second, failure of the appellee to make proof of loss within 30 days next after said loss, as required by the policy of insurance; third, vacancy of the house at the time it was burned; fourth, conveyance of the property, by mortgage, after the policy was issued; fifth, that the insured could not maintain an action for the loss in his own right and name. By the terms of the policy, the loss, if any, was made payable to the Jarvis-Conkling Mortgage Company, which was not a party to this suit. There was evidence tending to show that John J. Sumpter & Son were the general agents of the company at Hot Springs; that they issued the policy sued on; that the assured notified them of the loss a day or so after it occurred, and requested them to notify the company; that John J. Sumpter immediately thereafter did notify it in writing, and that the company acknowledged the receipt of the notice, which was sent through the mail. As to proof of loss, the evidence shows that proof of loss was made after the expiration of 30 days within which time it was required to be made by the policy. The evidence further tends to show that after notice of the loss had been given to the company as stated, and the 30 days within which proof of loss was required by the policy to be made, the company sent a special agent to Hot Springs to examine the loss; and after he had done so, and conferred with Sumpter & Son in regard to it, and returned home, the company sent to Sumpter & Son a blank form for proof of loss, and instructed them to turn it over to the appellee, that he might make his proof of loss, which he made and sent to the company; that the company returned it for correction; that it was corrected, and returned to the company, and that appellee never saw it afterwards, until he saw it at the trial, in possession of an attorney for appellant. As to the house being unoccupied at the time of the fire, the evidence tends to show that at the time of the fire the house was occupied by a Mr. Cole, tenant of the appellee, who had made arrangements to move into another house, and who, a day or two before the fire, had gone to Malvern, to meet his wife, leaving his two daughters in the house, with instructions to remain until he returned; that his wife was sick at Malvern, and on that account he did not return until Monday, when he had expected to return on the Saturday before; he arranged to have a man come on Sunday, with a wagon, to move him; that the man came, and moved a small portion of his furniture, but that nearly all his furniture was consumed by the fire Sunday night, when the house burned. As to the mortgage, the proof shows that it was made before the policy of insurance was issued, and that the mortgage clause was attached to the policy when it was delivered. The mortgage clause is as follows: "Loss, if...