Fidelity Phenix Fire Insurance Company v. Roth
| Decision Date | 09 June 1924 |
| Docket Number | 40 |
| Citation | 262 S.W. 643,164 Ark. 608 |
| Parties | FIDELITY PHENIX FIRE INSURANCE COMPANY v. ROTH |
| Court | Arkansas Supreme Court |
Appeal from Arkansas Circuit Court, Northern District; George W Clark, Judge; modified.
Judgment affirmed.
J A. Watkins, for appellant.
1. There is no proof in the record that appellant or its agent knew of the existence of the second mortgage, and that defense is not waived. The sworn proof of loss states that no other person had any interest in the property except the insured, yet the appellee knew of the existence of the mortgages. 65 Ark. 337.
2. There was no proof justifying the imposition of the statutory penalty and attorney's fee. If there is any liability in this case, it cannot be for a greater amount than was fixed by the plaintiff in his proof of loss. C. & M. Digest, § 6155; 92 Ark. 378.
John L. Ingram, for appellee.
1. We think the evidence justifies the finding that appellant knew of both mortgages; but if it did not know of the mortgages it is still liable under the facts in the case.
2. The imposition of the statutory penalty was justified, even if the total damage did not exceed the sum of $ 1,728.05, as contended by appellant. 92 Ark. 378.
This is a suit on a fire insurance policy issued by the appellant insurance company. The property insured was described as two thousand or more bushels of rice, and it was consumed or damaged by fire. The policy contains the following provision: "This entire policy, unless otherwise provided by agreement indorsed herein or added hereto, shall be void if the subject of insurance be personal property and be or become incumbered by a chattel mortgage."
At the time of the fire there were two mortgages on the rice, one in favor of the First National Bank of DeWitt and another in favor of the Arkansas Light & Power Company, but there was no notation in regard to either on the policy.
It is admitted that the insurance company knew of the mortgage to the bank before the policy was issued; in fact, the agent for the insurance company called on the cashier of the bank to inquire whether the bank would pay the premium, and the company's agent was told that the bank would pay the premium because it had a mortgage on the rice. The company admits that its liability cannot be defeated on account of the mortgage to the bank, because its agent knew of this mortgage, but the company denies liability on account of the mortgage to the Arkansas Light & Power Company, of which it claims to have had no knowledge. We think, however, that the testimony sufficiently supports the finding of the jury that the agent of the insurance company who wrote the policy of insurance was also advised of this mortgage, and, this being true, the provision of the policy in regard to incumbrance will be held to have been waived. National Union Fire Ins. Co. v. Kent, 163 Ark. 7, 259 S.W. 370, and cases there cited.
The suit was brought for the face of the policy, which was $ 2,000, and judgment was rendered for that amount, to which was added the statutory penalty of 12 per cent. and an allowance for attorney's fees. It is insisted that the undisputed proof shows that the damage from the fire was only $ 1,728.05, and that, this being true, no penalty should have been imposed, nor should an attorney's fee have been allowed.
We think counsel for the insurance company is correct in these contentions. The testimony shows a loss of only $ 1,728.05. When the adjuster called to make a settlement of the loss, an itemized statement was prepared as follows:
100 bushels red rice sold at 50 cents
50.00
Less shrinkage
47.98
Less hauling
47.97
Value 190 bushels rice saved but
damaged
95.00
240.95
Net loss
Pursuant to the...
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