Commercial Fire Insurance Company v. Waldron

Decision Date16 November 1908
Citation114 S.W. 210,88 Ark. 120
PartiesCOMMERCIAL FIRE INSURANCE COMPANY v. WALDRON
CourtArkansas Supreme Court

Appeal from Lawrence Circuit Court; Frederick D. Fulkerson, Judge reversed and dismissed.

STATEMENT BY THE COURT.

On the 12th day of September, 1906, a policy of fire insurance was issued by the Commercial Fire Insurance Company in favor of J. D. Waldron. The property insured was a one-story frame house in the town of Portia, in Lawrence County, Arkansas; it was destroyed by fire on the 28th day of October, 1906 during the life of the policy.

On November 6, 1906, Waldron assigned his policy to C. W Carter. On the 27th day of February, 1907, this suit was commenced by Waldron and Carter against the said insurance company to recover the amount of loss under said policy. The policy was made an exhibit to the complaint. The defendant answered and admitted the issuance of the policy sued on, but denied liability, averring among other things that by the terms of the policy itself there was a condition that a proof of loss should be filed with the company on or before thirty days after the fire occurred, and a failure on the part of the insured to comply with the condition.

There was a jury trial and a verdict for appellee. The insurance company has duly prosecuted an appeal to this court.

Judgment reversed and cause dismissed.

C. P. Harnwell, for appellant.

Under the terms of the policy it was necessary to furnish proof of loss within thirty days after the fire unless such time should be in writing extended by the company. This was not done, but on the contrary it appears in evidence that no proof of loss was given until December 14--more than forty-five days after the fire occurred. Such failure defeats recovery. 77 Ark. 84; 84 Ark. 224; 85 Ark. 337.

W. A. Cunningham and W. P. Smith, for appellees.

1. Rule IX of this court requires that the appellant's abstract shall set forth material parts of the pleadings, proceedings, facts and documents upon which he relies for a reversal. The judgment here should be affirmed for failure to comply with this rule, because appellant has not abstracted the complaint so as to give a clear understanding of the issues presented, nor does it sufficiently abstract the evidence, especially the testimony of witness Waldron, but purports to set out, not the substance of his testimony, but only what appellant's attorney says it shows. No mention is made of his testimony in rebuttal. 80 Ark. 571; 75 Ark. 571; 73 Ark. 49; 76 Ark. 139; Id. 217. Proof of loss was introduced in evidence, but there was no showing when it was made out, nor when received by the company, neither is it copied nor referred to in the bill of exceptions so as to identify it. The paper copied into the transcript, not being in any way identified, is not a part of the record, and cannot be considered here. 74 Ark. 90.

2. The company waived proof of loss by sending its adjuster to see appellee about the loss, after the fire, who made no objection as to proof of loss, and stated that the company would send another adjuster; and also by the letter of C. P. Harnwell denying any liability. 82 Ark. 235; 53 Ark. 494.

OPINION

HART, J., (after stating the facts).

The court gave a peremptory instruction in favor of appellees, to which the appellant duly excepted. Counsel for appellant urge that the judgment be reversed because the court did not direct a verdict for it, basing their contention on the fact that the condition of the policy in regard to furnishing proof of loss was not complied with by the appellees.

The condition in the policy in regard to making proof of loss is exactly the same as the one set out in the case of Teutonia Insurance Company v. Johnson, 72 Ark. 484, 82 S.W. 840, except that in the present case the policy required the proof of loss to be filed within thirty days. In that case the failure on the part of the insured to comply with these requirements was held to be a breach of the condition of the policy and to constitute a bar to his action. This has become the settled rule in this State, and has since been applied in the following cases: Arkansas Mutual Fire Insurance Co. v. Clark, 84 Ark. 224, 105 S.W. 257; Home Insurance Co. v. Driver, 87 Ark. 171, 112 S.W. 200. Was the proof of loss furnished in time?

J. D. Waldron testified that a proof of loss was made out for him by T. J. Scott, but does not state the date of it. Scott testified that he made out a proof of loss for Waldron, but did not remember the date of it. We quote from his testimony as follows:

"Q. Just examine that and see if you made that out?" (Here attorney presents a paper to witness purporting to be the proof of loss.) (Witness examines it.) "Yes, I made that out." "Did you send it to the company?" "I don't remember, sir, whether I did or gave it back to Mr. Waldron." "Well, look at that letter attached to it and see about it, that letter on the...

To continue reading

Request your trial
21 cases
  • Firemen's Insurance Co. v. Hays
    • United States
    • Arkansas Supreme Court
    • May 21, 1923
    ...251 S.W. 360 159 Ark. 162 FIREMEN'S INSURANCE COMPANY v. HAYS No. 399Supreme Court of ArkansasMay 21, 1923 ... value of a fire insurance policy, and statutory penalty of $ ... 72, and a reasonable ... Co ... v. Flemming, 65 Ark. 54, 44 S.W. 464; Commercial ... Fire Ins. Co. v. Belk, 88 Ark. 506, 115 S.W ... 172; People's Fire ... ...
  • American Insurance Company v. Haynie
    • United States
    • Arkansas Supreme Court
    • June 7, 1909
    ... ... B ... Haynie for the term of 3 years against loss by fire, for $ ... 450, on a dwelling house in the town of Bodcaw in Nevada ... County, Arkansas; for $ ... ...
  • Firemen's Insurance Company of Newark v. Rye
    • United States
    • Arkansas Supreme Court
    • September 24, 1923
    ... ... commercial deliveries. This was a promissory warranty, ... binding on the assured. 57 Ark. 279; 58 Ark. 277; ... appellee's Gardner touring car to the amount of $ 1,100 ... against loss by fire ...          The ... policy provided for proofs of loss within sixty days after ... ...
  • Clinton v. Modern Woodmen of America
    • United States
    • Arkansas Supreme Court
    • July 3, 1916
    ... ... 17; 94 Id. 389 ... Parol contracts of insurance have frequently been held valid ... 83 Ark. 22; 72 Mich ... Clinton, her husband. The company against which judgment was ... prayed is a fraternal ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT