Callum v. Farmers Union Mut. Ins. Co., 73--295
| Decision Date | 08 April 1974 |
| Docket Number | No. 73--295,73--295 |
| Citation | 256 Ark. 376,508 S.W.2d 316 |
| Parties | Joseph CALLUM, Appellant, v. FARMERS UNION MUTUAL INSURANCE COMPANY, Appellee. |
| Court | Arkansas Supreme Court |
Paul K. Roberts, Warren, for appellant.
Charles A. Wade, Little Rock, for appellee.
This is an appeal by Joseph Callum assigning as error the refusal of the Bradley County Circuit Court to award statutory penalty, attorney's fee and costs against the appellee Farmers Union Mutual Insurance Company in a suit by Callum against the insurance company which resulted in a judgment in favor of Callum for the full face value of $5,000 on a fire insurance contract.
The facts are briefly these: Lonnie Callum was a widower at the time of his death on September 15, 1970, and was survived by six sons and four daughters. Prior to his death Lonnie Callum had procured a fire insurance policy from the appellee insurance company in the amount of $5,000 on a small home he owned. In August, 1970, prior to Lonnie's death, a premium came due on his policy and Lonnie being financially unable to pay the premium, his son Joseph, who was visiting him at the time, did pay the premium and the policy was renewed with 'Lonnie Callum &/or Joseph Callum' as the named insured. The policy contained a provision as follows:
'The amount of loss for which this Company may be liable shall be payable sixty days after proof of loss, as herein provided, is received by this Company and ascertainment of the loss is made. . . .'
The policy also contained a provision as follows:
'. . . and within sixty days after the loss, unless such time is extended in writing by this Company, the insured shall render to this Company a proof of loss, signed and sworn to by the insured, stating the knowledge and belief of the insured as to the following: the time and origin of the loss, the interest of the insured and of all others in the property, the actual cash value of each item thereof and the amount of loss thereto, all encumbrances thereon, all other contracts of insurance, whether valid or not, covering any of said property, and changes in the title, use occupation, location. . . .'
As already stated, Lonnie Callum died on September 15, 1970, and the dwelling house and contents were totally destroyed by fire on May 31, 1973. On August 3, 1973, Joseph Callum filed his complaint in circuit court alleging the issuance of the policy, the death of Lonnie Callum, the destruction of the property, and the coverage under the policy as above set out. Joseph alleged in his complaint that he had given the defendant insurance company notice of loss and had executed a proof of loss as required by the terms of the policy, but, that notwithstanding the notice and proof of loss, the company had failed and refused to pay the loss and damage or any part thereof, Joseph then prayed judgment in the amount of $5,000, together with statutory penalty of 12%, a reasonable attorney's fee and costs.
On August 17, the insurance company filed an answer admitting the issuance of the policy, the death of Lonnie Callum, the occurrence of the fire and destruction of the insured property on May 31, 1973, and admitted that it was liable under its policy for the sum of $5,000. It alleged that it had tendered the payment of the amount it owed under the policy and was not liable for penalty and attorney's fee. The insurance company tendered the amount of $5,000 into the registry of the court with its answer.
The case was submitted to the trial judge sitting as a jury and on September 26, 1973, the trial court ordered that the $5,000 deposited in the registry of the court be paid to Joseph Callum without prejudice to his right to appeal on other points contained in his cause of action, and on the same date the trial court entered judgment against the insurance company for the sum of $5,000. The court denied Joseph's prayer for penalty, attorney's fee and court costs and, as already stated, Joseph contends that the trial court erred in failing to assess penalty, attorney's fees and court costs against the defendant insurance company.
The appellant, Joseph Callum, testified as to the death of his father, as above set out, and testified that he, Joseph, has five brothers and four sisters. He testified that after his mother's death his father continued to live in the home alone until his death. He said that when he was visiting his father in August, 1970, he was advised by Mr. Henderson, an agent of the appellee insurance company, that his father was about to drop his fire insurance. He said he told his father he would start paying the insurance premium and that he did so. He said he made the premium payments when due and kept the policy in force until the house and contents were destroyed by fire on May 31, 1973. He said the following the loss, he first talked to Mr. Henderson when Henderson brought a company check in the amount of $4,500 to his home about 30 days after the loss. He said the check was made payable to Lonnie Callum's estate and Joseph Callum. He said he told Mr. Henderson he did not think the check was made out properly, to the right person, and refused to accept the check. He said he had no further conversation with Mr. Henderson. He then testified that he went to his attorney's office sometime in June, 1973, and that his attorney wrote a letter to the insurance company for him and he signed the letter.
On cross-examination Joseph Callum testified that his father owned the house involved and he supposed he owned the insured contents. He said he himself claimed no ownership interest in the property and did not know whether his brothers and sisters claimed any interest in the proceeds from the insurance or not. He restated, under questioning by the court, that his father died on September 15, 1970, and the fire occurred on May 31, 1973.
The letter above referred to, as written by Mr. Callum's attorney, was dated June 27, 1973; was addressed to the insurance company, and reads as follows:
'This letter is to give you notice of loss in the dwelling and household goods insured by your policy No. 80,087, said policy...
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