Fidelity-Phenix Fire Insurance Company v. Friedman

• Decision Date: 15 February 1915
• Docket Number: 185
• Citation: 174 S.W. 215,117 Ark. 71
• Parties: FIDELITY-PHENIX FIRE INSURANCE COMPANY v. FRIEDMAN
• Court: Arkansas Supreme Court

174 S.W. 215

117 Ark. 71

FIDELITY-PHENIX FIRE INSURANCE COMPANY v. FRIEDMAN

No. 185

Supreme Court of Arkansas

February 15, 1915

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; modified and affirmed.

STATEMENT BY THE COURT.

Leah Friedman was the owner of a four-story brick building in the city of Fort Smith, Arkansas, and in February, 1914, the building was damaged and partially destroyed by fire. Mrs Friedman had policies in eight insurance companies, including the Fidelity-Phenix Insurance Company.

The New York Life Insurance Company was the holder of a mortgage upon the property and was protected from loss by the policies of insurance. After the fire occurred the adjusters for all the different companies visited Fort Smith and entered into negotiations with the plaintiffs for the adjustment of the losses. The parties failed to agree and the insurance companies refused to make payment under their policies. Mrs Friedman and the New York Life Insurance Company then entered separate suits against the insurance companies to recover the amount alleged to be due them under the policies.

On motion of the plaintiffs and over the objection of the defendants the causes were consolidated and tried together. Upon the trial of the case, Lewis Friedman was offered as a witness on behalf of the plaintiffs and the defendants objected to his testifying on the ground that he was the husband of the plaintiff, Leah Friedman. Their objection was overruled and Lewis Friedman was permitted to testify. He testified that his wife constituted him her agent to notify the defendants of the loss occasioned by the fire and to adjust the same; that pursuant to this authority he notified the agents of some of the insurance companies of the loss that two adjusters, representing all of the insurance companies, came to Fort Smith and went with him to examine the building for the purpose of adjusting the loss; that at their suggestion an architect was employed to make an estimate of the loss but after some negotiations on the subject they were unable to agree as to the amount of the loss and the insurance companies refused payment, and that proofs of loss were made out by the plaintiffs and presented or mailed to the defendants within the time and in the manner provided for in the policies. The witness also described the part of the building burned as it appeared to him at the time he made the examination with the adjusters of the insurance companies. He further testified that a steel girder ran through the entire length of the building, that this girder was about the center of the building and that the front and rear walls of the building where this girder entered them were out of plumb but that he did not know from what cause.

The plaintiffs employed architects and contractors to examine the building and make a detailed estimate of the damage done to the building and the cost of placing it in the same condition it was before the fire. The total amount of the damage from the fire was variously estimated by the witnesses at from seventeen to more than twenty thousand dollars.

Architects and contractors employed by the defendants also made detailed estimates of the amount of damage occasioned to the building by the fire and the cost of placing the building in the same condition as before the fire, and their estimates placed the damages at not exceeding eight thousand dollars.

The jury returned a verdict in favor of the plaintiffs in the sum of $ 17,473.04, which was the amount sued for.

Upon the hearing of the motion for a new trial filed by the defendants the court announced that it would grant the same unless the plaintiffs would enter a remittitur of $ 2,500. The plaintiffs entered the remittitur as required by the court and the court overruled the motion for a new tribal. The court then, on motion of the plaintiffs, allowed an attorney's fee of $ 1,000 and imposed a penalty of 12 per cent under the statute. The court entered judgment against each of the insurance companies for the proportionate amount due by each of them under the terms of their policies. The defendants have appealed. Other testimony will be referred to in the opinion.

Judgment affirmed.

Ira. D. Oglesby, for appellant.

1. It was error to refuse to postpone the case until the witness Klingensmith was able to testify.

2. Each defendant was entitled to separate challenges to jurors. 90 Ark. 484; 145 U.S. 285; Kirby's Dig., § 4536; 83 Ark. 290; 37 Mich. 490.

3. It was error to admit testimony as to damage to and by steel girders. No mention of this is made in the items of the proofs of loss.

4. It was error to refuse defendant's application to compel plaintiffs to permit the examination of Jennings and the mechanics under him to be completed.

5. The husband's testimony was inadmissible in behalf of the wife. Const Ark.

6. Immediate notice of loss was not given. 72 Ark. 484.

7. The court had no authority under the verdict to enter separate judgments against the respective defendants. 83 Ark. 255; 90 Id. 482; 145 U.S. 285.

8. It was error to assess the attorney's fee and the penalty. 92 Ark. 378; 93 Id. 84.

9. A recovery could only be had for the items specified in the proof of loss.

Ben Cravens, for appellees.

1. The testimony of Klingensmith was cumulative merely. Motions for continuance are within the sound discretion of the court. 80 Ark. 376; 104 Id. 606; 93 Id. 346; 95 ld. 291.

2. After consolidation there was only one cause of action and only three peremptory challenges were allowable. 77 Ark. 74; 83 Id. 290; 86 Id. 137; 93 Id. 140; 90 Id. 484; 83 Id. 255; 107 F. 842; 148 Id. 824; 104 Id. 317.

3. Proofs of loss are primarily intended to secure an adjustment between the insured and the company, and the statements as to the amount and circumstances of the loss are not binding on the insured so as to preclude his recovery for the real amount of the 1oss. 19 Cyc. 854; 126 Ill. 329; 9 Am. St. Rep 602; 106 Pa.St. 28; 24 Hun, 58; 55 N.Y. 222; 52 Ill. 464.

4. After the damages had been assessed and the trial completed the court had no power to compel appellees to permit an examination by Jennings.

5. Friedman was a competent witness as agent of his wife. In any event he was competent, as the New York Life Insurance Company was a plaintiff to whom the loss was payable. 62 Ark. 26.

6. Appellants had immediate notice of the loss. The burden is on the insurer to establish a forfeiture under the terms of the policy. 85 Ark. 33. No instruction was asked by appellants upon the question of immediate notice and this question was waived.

7. Defendants were each liable for their proportionate share of the entire loss, and it was not error for the court to prorate the liability. A separate verdict was not necessary as no prejudice resulted.

8. Act No. 115, Acts 1905, 307-8, authorizes an assessment of attorney's fee and penalty. 86 Ark. 115; 92 Id. 378. In the latter case, the amount recoverable was fixed by the policy, while in this case the amount recoverable was the amount of damage not in excess of the aggregate amount of the policies. Plaintiffs only sued for the loss or damage actually suffered and recovered that sum.

9. A recovery is not limited to the items stated in the proofs of loss. 126 Ill. 329; 19 Cyc. 854; 126 Ill. 329; 9 Am. St. Rep. 602; 106 Pa.St. 28; 24 Hun, 58; 55 N.Y. 193;52 Ill. 464.

OPINION

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

It is first insisted by counsel for the defendant that the court erred in refusing to continue the case upon their motion. The record discloses that about ten days before the cases were set for trial Klingensmith, an architect of the city of Fort Smith, was employed by the defendants to make an examination of the damaged building and to prepare plans and specifications of what was necessary to restore it to its original condition, with an estimated cost thereof. He performed this work, but when the case was called for trial, or a day before the cases were set for trial, he became suddenly ill and was not able to be present in court as a witness. Upon the hearing of the motion the plaintiffs introduced testimony tending to show that another architect could take the estimates and specifications prepared by Klingensmith and explain them to the jury. The court denied the motion for a continuance, and the specifications and estimates prepared by Klingensmith were read to the jury as his deposition, no objection being made by the plaintiffs. Under these circumstances, we do not think the court abused its discretion in refusing to continue the case on account of the illness of Klingensmith. Moreover, the record shows that the trial of the case continued for several days, that other architects for the defendants examined the building and testified for them in the case. Besides this, the record shows that they employed several contractors who made an examination of the building and testified in detail as to the parts damaged and the cost of restoring the building to its condition as it was before the fire.

After the cases were consolidated and during the formation of the jury, the eight defendants contended that they were each entitled to three peremptory challenges under section 4536 of Kirby's Digest, and assign as error the action of the court in refusing them the same. In support of their contention they cite the case of Mutual Life Ins Co. v. Hillmon, 145 U.S. 285, 36 L.Ed. 706, 12 S.Ct. 909. It must be conceded that that decision sustains the contention of the defendants, but we do not agree with the reasoning of the court in that case. The act of May 11, 1905, under which the cases were consolidated, provides, in effect, that when causes of action of like nature or relative to the...