Commercial Fire Insurance Company v. Belk

• Decision Date: 21 December 1908
• Citation: 115 S.W. 172,88 Ark. 506
• Parties: COMMERCIAL FIRE INSURANCE COMPANY v. BELK
• Court: Arkansas Supreme Court

115 S.W. 172

88 Ark. 506

COMMERCIAL FIRE INSURANCE COMPANY v. BELK

Supreme Court of Arkansas

December 21, 1908

Appeal from Calhoun Circuit Court; George W. Hays, Judge; affirmed.

Judgment affirmed.

Charles P. Harnwell, for appellant.

Mrs Belk was not the sole and unconditional owner in fee simple but had sold it. The policy was void. 72 Ark. 47; 77 Id. 57; 62 Id. 348; 63 Id. 187; 67 Id. 584; 82 Id. 400.

2. There was no waiver by the company. The agent knew nothing of the policies until after the fire. Besides he was the attorney of the plaintiff. 3 Cooley's Briefs on Insurance, 2774; 26 So. 655; 66 Ia. 466; 122 N.Y. 578; 24 Oh St. 67.

3. The burden was on plaintiff to prove the waiver. 3 Cooley's Briefs on Insurance, 2768, 2773; 23 Ind.App. 121; 53 67 Id. 584; 63 Id. 187.

A. L. Wilson and Thornton & Thornton, for appellee.

1. A waiver by a duly authorized agent of the company was clearly shown. 52 Ark. 11; 75 Id. 100; 24 S.W. 807; 67 Ark. 553; 53 Id. 499; 63 Id. 188; 62 Id. 34.

2. An agent who has authority to write policies may also act as an agent of the assured. 76 Ark. 180.

OPINION

BATTLE, J.

Adelia J. Belk brought this action against Commercial Fire Insurance Company on two policies of insurance executed by the defendant to plaintiff on the 9th day of October, 1906, insuring her hotel and dwelling house in the town of Thornton against fire for a period of one year. The policies contained the following conditions:

"This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material facts or circumstances concerning this insurance, or the subject thereof; or if the interest of the insured in the property be not truly stated herein; * * * or if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple; or if the property be or become incumbered by mortgage; * * * or if any change other than the death of an insured take place in the interest, title, or possession of the subject of insurance.

"If fire occur, the insured shall give immediate notice of any loss therein in writing to this company, protect the property from further damage, * * * and, within thirty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to origin and time of fire, the interest of the insured and of all others in the property, all incumbrances thereon, and changes in the title, use, occupation, location, possession, or exposures of said property since the issuing of this policy, etc.; * * * or this policy shall be null and void."

In its answer in the action defendants denied that "it was notified of the fire, or that she (plaintiff) ever furnished a proper proof of loss, or otherwise performed all conditions of the said policies on her part."

"It alleged that Adelia J. Belk was neither the owner of nor in the possession of either of said buildings so insured by her under said policies, at the time of the said fire, and alleged that both of said buildings had been sold by Adelia J. Belk to Isaac W. Kifer, that she had parted with the possession thereof before said fire without the knowledge or consent of the appellant, and that said properties belonged to the said Isaac W. Kifer.

"That Adelia J. Belk had not complied with the conditions of the said policies, and that she was not the sole owner of the properties as contemplated by and within the meaning of the express terms of the said policies, and that she had parted with the possession of said properties, and there had been a change in the occupancy, contrary to the terms of the said policy."

The issues in the case were tried by a jury. In the trial evidence was adduced tending to prove the following facts: The policies of insurance were executed by the defendant to the plaintiff as shown by the pleadings. On the 19th of August, 1907, while the policies were in force, the hotel was totally destroyed by fire, and the dwelling was damaged; one witness saying $ 50, and another from $ 150 to $ 200. Notice of the fire was given, and proof of loss was made within the time and in the manner prescribed by the policies.

On the first day of April, 1907, the plaintiff contracted with I. W. Keifer in writing to sell and convey to him the property insured when the price agreed upon was paid. A. J. Koenigstein drew the contract for them. He was at that time the agent of the defendant, and was furnished by it with blank applications and blank policies duly signed by the defendant, and was authorized to solicit insurance and take risks by filling blanks in policies and delivering them without advice from the defendant. In the course of or after the transaction with Kifer he assured the...