Burlington Ins. Co. v. Kennerly

• Decision Date: 18 May 1895
• Parties: BURLINGTON INS. CO. v. KENNERLY.
• Court: Arkansas Supreme Court

31 S.W. 155

BURLINGTON INS. CO. v. KENNERLY.

Supreme Court of Arkansas.

May 18, 1895.

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

Action by M. M. Kennerly against the Burlington Insurance Company on a policy of fire insurance. From a judgment for plaintiff, defendant appeals. Reversed.

Clayton & Brozzolara, for appellant. C V. Teague, for appellee.

BUNN, C. J.

This is a suit on a policy of fire insurance, instituted and determined in the Garland circuit court, resulting in a judgment in favor of the plaintiff, M. M. Kennerly, the appellee here, in the sum of $150, against the defendant and appellant company, from which it has appealed to this court. There having been no notice and proof of the loss, as provided in the policy, the only question for our consideration is whether or not the same has been waived by the insurance company. It appears from the testimony that previously to the 18th day of July, 1892, John J. Sumpter & Son were the local agents of the appellant company at the city of Hot Springs, Ark., and had authority as such "to sign and issue policies, and issued the one sued on, and frequently acted for them in adjusting losses, and have all the time, and do now [time of taking testimony], correspond in regard to losses." Again, he says: "My agency with the company, I suppose, expired the 21st July, as to signing and issuing policies. But I do not consider that our authority as agents, as to policies issued, was revoked. We wrote no more policies after that date. We corresponded after that in regard to policies already issued, and when fire occurred after that we notified them immediately, and do so yet, and they always answered the letters." Again, he says: "I never notified Kennerly before the fire. Perhaps I did afterwards. I told him I would not issue any more policies. I told him we would write to the company about the loss. He came to see us almost daily. We would show him the letters, and tell him what we heard." Witness, being shown a paper, was asked if it was the revocation, and said it may be, and the same is as follows: "Office of Burlington Fire Insurance Co. Burlington, Iowa, July 18, 1892. John J. Sumpter & Son, Hot Springs, Arkansas — Dear Sir: This is to notify you that on and after this date your agency for this company is canceled, and that we cannot accept any more business from you. Please mail to us our policies and your commission only, and destroy all other supplies. Also please send us at once your final account current, with draft to balance. Yours, truly, [Signed] John C. Miller, President." In his testimony the plaintiff testified on this point as follows, to wit: "After the loss, I was never notified that Sumpter was no longer the agent, except about one and one-half months after the fire. He said he was no longer agent. I was frequently in the office, and he always said the company would pay me; to rest easy, that the company was very busy; that it was a small claim, and they may have omitted it. He said the company had sixty days; said the adjuster would come and settle up." After the receipt of the letter of revocation of his authority as agent, which he thinks was about the 21st of July, 1892, John J. Sumpter, in his testimony, further states that: "I never got parol or written authority to act from the company; that is, I never got authority to issue and sign policies." In the policy exhibited with the complaint and introduced in evidence it is stipulated, among other things: "In case of loss, the assured shall give immediate notice thereof to the president or secretary at Burlington, Iowa, in writing, and shall, within thirty days next after said loss, deliver to the president or secretary of the company at Burlington, Iowa, a particular account of said loss, under oath, stating the time, origin, and circumstances of the fire; the occupancy of the whole building insured, and the several parts thereof, or containing the property insured at the time of the fire; and the amount of the loss and damages," and sundry other matters pertaining to...