Citizens' Fire Insurance Co. v. Lord

• Court: Supreme Court of Arkansas
• Writing for the Court: WOOD, J.,
• Citation: 139 S.W. 1114,100 Ark. 212
• Parties: CITIZENS' FIRE INSURANCE COMPANY v. LORD
• Decision Date: 02 October 1911

139 S.W. 1114

100 Ark. 212

CITIZENS' FIRE INSURANCE COMPANY
v.
LORD

Supreme Court of Arkansas

October 2, 1911

Appeal from Union Circuit Court; G. W. Hays, Judge; affirmed.

STATEMENT BY THE COURT.

This suit was instituted by appellee against appellant to recover on a fire insurance policy. The appellee alleged the issuance of the policy, the payment of the premium, and the loss by fire on the 1st day of January, 1909, while the policy was in force. He alleged that he had no other insurance on the merchandise and household goods insured by the policy. He alleged that after the loss he gave to appellant notice thereof on the 27th day of February, 1909, by delivering to appellant an account of said loss signed by appellee and verified by his oath containing all the particulars required to be stated therein by the terms of the policy. He alleged by amendment after the evidence was concluded, and over appellant's objection, that appellant waived proof of loss under the policy by stating through its agent that it would not pay the policy. It was alleged that the actual value of the property was at least $ 625.

The prayer was for judgment in the sum of $ 400 and for attorney's fee and costs.

Appellant set up among its grounds of defense:

1. That appellee at the time of the issuance of the policy sued on had insurance in the Des Moines Fire Insurance Company, which fact he concealed from appellant, and which fact under the terms of the policy precluded recovery by appellee.

2. That appellee had never furnished to appellant the proof of loss, required by the terms of the contract to be furnished appellant within sixty days after the destruction of the property by fire.

Appellee exhibited the policy of insurance, and testified as to the loss and the value of the property destroyed. He further testified that he made out and sent proof of loss to one McNally, that the proof of loss was sworn to. He stated that he told Reynolds, the insurance agent, that he had two hundred dollars insurance on household goods and eight hundred dollars on the property, and that he wanted two hundred dollars on household good and two hundred dollars on the commissary. He told the agent that he had other insurance, that Mr. Powell had it. Powell was the agent of the Des Moines Fire Insurance Company, and the policy was taken out in that company. He further testified that he talked with Reynolds about the payment of the policy after the fire. In the first conversation Reynolds stated that he believed he could settle for nine-thirteenths of the amount of the policy, and that the company hardly ever paid the full amount. In the next conversation, which was just seven or eight days after the fire, Reynolds said he could not settle at all.

The testimony of McNally shows that he placed in the mail, February 17, 1909, the proof of loss duly verified by appellee, and addressed it to the Citizens Bank, Clarksville, Arkansas. A. P. Reynolds testified: That he was the local agent of the company in El Dorado. He could issue policies and could approve the same for persons desiring insurance. He wrote the policy for appellee, who paid the premium on same, amounting to nine dollars. Appellee, said nothing to him about having additional or other insurance on the household goods saved. He had no intimation of any such insurance until after the fire. Appellee told him there was "about $ 50 worth of the household goods saved." They estimated that the sum of $ 50 should be deducted from the policy, provided the company paid him. He never refused payment, never said anything to appellee about paying nine-thirteenths of his insurance.

The secretary of the company testified that the company never received any proof of loss. It was his duty to receive such papers when in his office, and when absent the stenographer opened the mail and put it all on his desk. It would have been almost impossible for the proof of loss to have been overlooked, had it been received. There was nothing done by his office waiving proof of loss. No demand was made for the books of the company to be turned over to the adjuster for inspection.

The court gave instructions in effect telling the jury that appellee was entitled to recover provided he had complied with the conditions of the policy as to him. The instructions also told the jury in effect that if the appellee had failed to comply with the conditions of the policy as to the proof of loss he could not recover unless the appellant had waived a compliance with such condition on the part of appellee. The instructions also told the jury that if appellee had additional or other insurance at the time of the issuance of the policy he could not recover unless he notified the company at the time of such additional insurance.

The verdict and judgment were for the appellee in the sum of $ 424 with 12 per cent. penalty, and the court fixed an attorney's fee for appellee of $ 75.

Judgment affirmed.

R. G. Harper and G. O. Patterson, for appellant.

1. The original complaint alleges that appellee furnished proof of loss within the time and in the manner required by the policy. The defense of waiver rests upon the theory alone of failure to furnish proof, and that such failure was induced by the conduct...