Home Ins. Co. v. Moyers, 5--5735
| Decision Date | 06 March 1972 |
| Docket Number | No. 5--5735,5--5735 |
| Citation | 477 S.W.2d 193,252 Ark. 51 |
| Court | Arkansas Supreme Court |
| Parties | HOME INSURANCE COMPANY, Appellant, v. Ernest D. MOYERS, Appellee. |
Griffin Smith, Little Rock, for appellant.
No brief for appellee.
Appellant brought this action to cancel its automobile liability policy issued to appellee, alleging that the coverage was fraudulently secured by appellee after the occurrence of an accident. Appellee answered and asserted that a valid binder on the policy was agreed upon in a telephone conversation with appellant's agent approximately forty-five minutes preceding appellee's involvement in an automobile accident. The chancellor found that coverage existed and for reversal of that decree the appellant contends that such finding is against the preponderance of the evidence.
Appellant's agent, Mr. S. W. Bowker, testified that on Friday night November 20, 1970 the appellee telephoned him at his home stating that his car insurance was up for renewal and he wished to purchase liability insurance on two cars and a truck. The agent was unable to recall any previous conversation about insurance with the appellee. Nevertheless, coverage on the vehicles was discussed and a binder effected. The agent furthr testified that the appellee 'offered to come over that night, but I told him I didn't have books at home to take care of it.' When the appellee asked, 'can you bind me' the agent advised him, 'I will bind you in Home Insurance (appellant) and we arranged for me to see him Monday' to complete the application since he (the agent) was attending a football game in Texas the next day. The agent testified that to the best of his recollection the appellee's telephone call to him was made between 8:15 and 8:30 p.m. and that the call 'came after 8:15, to the best of my knowledge.' He and his wife were watching a TV movie from 7 to 9 p.m. The agent testified that he and his wife had been watching the movie for an hour to an hour and a half when the telephone call came from the appellee: 'I know it was in the latter stages of the movie * * * in the last half (of the movie) to the best of my knowledge.' During the telephone conversation appellant's agent heard some noise in the background which he could not describe, but stated that appellee's conversation appeared normal and he did not detect any excitement in appellee's voice.
The agent received a call from the appellee on the following Sunday afternoon and met him about 2:30 p.m. at the agent's office. The appellee asked: 'Was I bound?' The agent told him 'yes, what happened?' The appellee told him that he was involved in an accident subsequent to their telephone conversation on Friday evening. The agent testified that the appellee-insured told him the accident happened at 8:45 p.m. It was later learned from a police report that the accident occurred at 8:05. The agent completed the application and took appellee's check with the understanding that the check wasn't any good until appellee put a check on another party in the bank the next day. Upon a telephone inquiry the next day, the bank advised the agent that appellee's check was not good. Appellee then brought the agent a third-party check which the agent never cashed because appellee's insurance was not desired.
The appellee testified that because of the illness of a friend in Texas, he and his family intended to make the 5-hour drive there on Friday night. At his wife's insistence that he secure insurance, he called appellant's agent 'around 7:30 or a quarter until 8.' According to appellee, appellant's agent seemed to recognize him and asked questions as to any previous accidents, his age, 'teenage drivers' and 'whether my wife drove or not.' Appellee answered all questions asked and also gave the names of lienholders on his cars since that information had to be on the policy. He also furnished his driver's license number. The agent declined appellee's offer to come by that night and complete the policy application and to make a down payment on the premium.
Appellee further testified that on the night of the accident he left his house at 5 or 10 minutes before 8 o'clock; that the accident occurred when he was forced from his lane of traffic and rear-ended another car which had stopped because of another accident; that the force of the impact threw him forward and against the steering wheel, bending it, and threw his son out of the front seat and underneath the dashboard; that he was much concerned about the condition of his wife and three children; that the state policeman made him get into the police car and sit there; that he was bleeding from the mouth, his lips were swollen and he was physically unable to use a telephone; that about 30 minutes...
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