Franklin Fire Insurance Co. v. Holmes

• Citation: 69 S.W.2d 281,188 Ark. 1053
• Decision Date: 12 March 1934
• Docket Number: 4-3406
• Parties: FRANKLIN FIRE INSURANCE COMPANY v. HOLMES
• Court: Supreme Court of Arkansas

69 S.W.2d 281

188 Ark. 1053

FRANKLIN FIRE INSURANCE COMPANY v. HOLMES

4-3406

Supreme Court of Arkansas

March 12, 1934

Appeal from Prairie Circuit Court, Northern District; W. J Waggoner, Judge; reversed.

Judgment reversed.

Verne McMillen, for appellant.

Emmet Vaughan and George W. Craig, for appellee.

OPINION

BUTLER, J.

On November 9, 1930, Mrs. Frank L. Goodwin, as owner, secured a policy of fire insurance in the sum of $ 800 on a dwelling house situated on lots 7 and 8, block 28, Watkins' Survey to the town of Des Arc, loss, if any, payable to Henry Nichols, mortgagee. The policy provided that it should be void if the interest of the insured be other than unconditional and sole ownership, or if the subject of the insurance be a building on ground not owned by the insured in fee simple; also, that in the event of the destruction of the property by fire, as a condition precedent to recovery, proof of loss should be made within 60 days.

Mrs. Goodwin died in December, 1930, and on January 19, 1931, J. J. Holmes was appointed administrator of her estate. On April 2, 1931, the property was destroyed by fire, and the insurance company was so notified. Henry Nichols, acting for himself as mortgagee, made the proof of loss necessary to effect a settlement between him and the company, which paid him the amount of his debt secured by the mortgage in the sum of $ 401, and, under a stipulation in the policy, the company took an assignment of the mortgage from Nichols on June 20, 1931. During this time an investigation was made concerning the title to the property, and it was found that on July 8, 1926, Mrs. Goodwin had conveyed the property by warranty deed to Mrs. Frank Hall Murphy, a niece, who lived with her, and, on April 11, 1927, following, Mrs. Goodwin had executed another deed to Mrs. Murphy to correct the descriptions contained in the deed executed in 1926. Mrs. Frank Hall Murphy, claiming to be the owner of the property and entitled to the insurance thereon, employed E. F. West and J. P. Kerby, of Little Rock, attorneys, to represent her in an attempt to effect a settlement, and, on October 1, 1931, signed a letter addressed to the insurance company advising it that she had authorized West and Kerby, as her agents and attorneys, to settle for the insurance loss "on what is known as the Goodwin or Murphy property, consideration that I get an assignment of the Henry Nichols mortgage, which is the mortgage that was transferred and assigned to your company, the same being of record in record book "Y," at page 625, records of Prairie County, Arkansas, and you are requested to assign this mortgage and deliver same to my said attorneys, making a full settlement with them for all consideration, etc." This was witnessed by Mrs. Ruth Johnson, a sister of Mrs. Murphy, and by a Miss Mary Hall. Mrs. Murphy claimed there was some writing in the letter not there when she signed it, but there was no claim that West and Kerby did not have authority to settle for her with the company. The insurance company settled with the said attorneys by assigning to them the Nichols mortgage and paying the sum of $ 100 in cash. After this settlement was effected, on May 3, 1932, Mark Bell filed a complaint in the Prairie Chancery Court against Mrs. Frank Hall Murphy, on which no summons was issued, but which Mrs. Murphy answered, and there appeared on the judge's docket the following notation: "5-7-32, decree setting aside deed. No summons."

On August 23, 1932, J. J. Holmes, as administrator of the estate of Mrs. Goodwin, brought the action from whence this appeal comes, to recover on the policy of insurance.

On issue joined, testimony was adduced, the case was submitted to a jury, which returned a verdict in favor of the plaintiff for the sum demanded. The court thereupon rendered judgment for that sum with interest, 12 per cent. penalty, and attorney's fee. On appeal it is insisted that the court erred in giving certain instructions for the plaintiff and in refusing others requested by the defendant, which we need not notice for the reason that it is our opinion that the court erred in refusing to direct the jury, at the request of the defendant, to return a verdict in its favor.

The testimony established beyond question the facts heretofore stated. During the trial the plaintiff, in response to the contention that his intestate was not the owner of the property, offered in evidence the chancellor's notation which we have quoted supra, and a decree was entered purporting to be based upon the notation aforesaid, in which the court found as the basis for its decree...