Concordia Fire Ins. Co. v. Mitchell

• Decision Date: 21 February 1916
• Docket Number: (No. 198.)
• Citation: 183 S.W. 770
• Parties: CONCORDIA FIRE INS. CO. et al. v. MITCHELL.
• Court: Arkansas Supreme Court

Page 770

183 S.W. 770

CONCORDIA FIRE INS. CO. et al. v. MITCHELL.

(No. 198.)

Supreme Court of Arkansas.

February 21, 1916.

Appeal from Circuit Court, Hempstead County; Geo. R. Haynie, Judge.

Actions by J. W. Mitchell against the Concordia Fire Insurance Company and another, which were consolidated. From a judgment for plaintiff, defendants appeal. Affirmed.

Allen Hughes and W. W. Hughes, both of Memphis, Tenn., for appellants. Steve Carrigan, Jr., of Hope, and L. F. Monroe, of Washington, Ark., for appellee.

SMITH, J.

Appellee, who was doing business as the Rustic Novelty Company, brought suits against the appellant insurance companies on certain policies of insurance covering property which was destroyed by fire on July 11, 1914. There was prayer for the amounts of the policies and the statutory penalty and for attorney's fees. Separate suits were filed against each of the companies, but the same issue is involved in each case, and the cases were consolidated and tried together.

No question is made as to the occurrence of the fire or the extent of the loss. The policies sued on are standard form policies, and each of them contained the usual requirement that the insured shall, in the event of loss sustained by fire, make due proofs of loss to the insurer within 60 days thereafter, and provides that, in case this is not done, the policy shall become void.

Appellee does not claim to have made proofs of loss, and the question in the case is whether that requirement has been waived. Immediately after the fire appellee reported the loss to one C. B. Foster, who was engaged in the insurance business under the name of the Hempstead County Insurance Agency, which agency had written both policies. Some time thereafter Foster called upon appellee, in company with a stranger to appellee, but who was introduced by Foster as Mr. Casey, the adjuster for the insurance companies, who had come to adjust appellee's loss under said policies. Relying upon this representation of Foster, appellee took Casey to the scene of the fire and directed him to the night watchman who, was in charge of the insured property at the time of the fire, and then, upon Casey's further request, furnished and delivered to him an itemized list of the property lost in said fire and the value of each article lost. Thereupon Casey expressed himself as satisfied with the proof of loss, and informed appellee that settlement would be made with him within the course of a short time. Appellee then inquired of Casey if anything additional was required, and was advised that nothing else was necessary, and that the showing made was sufficient. Resting on this assurance, appellee made no other proof of loss, but on September 2d wrote a letter to one H. B. Hart, of Memphis, Tenn., an adjuster of the appellant companies, requesting an early settlement of his loss, but Hart made no reply to this letter until September 15th, which was after the expiration of the 60 days allowed for the proof of loss.

It was not denied that Foster was appellant's agent, and that he wrote, signed, and delivered the policies to appellee; nor is it denied that he introduced Casey as the adjuster who was there for the purpose of adjusting appellee's loss. It is insisted, however, that the proof in regard to Foster's agency shows that the extent of his authority was to solicit insurance, issue policies, and collect premiums, and that he had no authority to adjust losses, and none to waive proof of loss, and that he had no power, therefore, to bind...