Lyle v. Federal Union Insurance Co.

• Decision Date: 20 March 1944
• Docket Number: 4-7312
• Citation: 178 S.W.2d 651,206 Ark. 1123
• Parties: Lyle v. Federal Union Insurance Company
• Court: Arkansas Supreme Court

178 S.W.2d 651

206 Ark. 1123

Lyle v. Federal Union Insurance Company

No. 4-7312

Supreme Court of Arkansas

March 20, 1944

Appeal from Craighead Circuit Court, Western District; Walter N Killough, Special Judge.

Reversed.

Claude B. Brinton, for appellant.

Verne McMillen, for appellee.

OPINION

Robins J.

The dwelling house of appellants in the city of Jonesboro, Arkansas, was insured against loss or damage by fire by appellee, Federal Union Insurance Company, in the sum of $ 1,000 and by appellee, Hartford Fire Insurance Company, in the sum of $ 2,500, and while so insured was damaged by fire on February 7, 1943. An estimate was made showing that the building suffered damage by the fire in the sum of $ 3,297.39. Negotiations between appellants and Paul Howard, as adjuster for both companies, ensued and resulted in an agreement, according to the contention of appellants, for payment of $ 2,650 by both companies in settlement of the loss under the two policies. Thereafter a draft from the first named company in the sum of $ 726.32 and a draft from the second named company in the sum of $ 1,819.30 (the drafts totaled $ 2,545.62) were sent to the local agent of the insurers. When appellant, J. E. Lyle, called for the drafts he called attention to the fact that they totaled $ 104.38 less than the agreed amount. According to his testimony, he was told by one of the insurance agents and by a representative of the adjuster that the misunderstanding would be "straightened out," and on this assurance he cashed the drafts. Each of the drafts bore an indorsement to the effect that same was in full settlement of all claims and demands under the respective policies involved. Not receiving any further payment appellants instituted suit against the two companies for $ 751.77, the difference between the amount of damage claimed, $ 3,297.39, and the amount realized from the two drafts, $ 2,545.62.

The answer of appellees denied that they had agreed to pay appellants $ 2,650 and set up acceptance and payment of the drafts as an accord and satisfaction.

Mrs. Minnie Mae Hickey testified that she was employed by the United Insurance Agencies, which represented one of the companies, and as notary public took the affidavit of appellants to the proofs of loss; that these proofs of loss were in blank when appellants signed them; that she knew there was a complaint by Mr. Lyle about the amount of the check, and that he had refused to accept the check in full settlement.

Appellant, J. E. Lyle, testified that at the request of Mr. Cole and Mrs. Hickey he had an estimate of the damage made; that he got C. A. Stuck & Sons to make an estimate and their estimate showed the damage to be $ 3,297.39; that an agreement was reached on the amount due, and he and his wife signed the proofs of loss in blank and later the checks came; that the checks were found to be $ 104.38 short, and the adjuster was so notified; that acting on the advice of Mr. Cole, agent of one of the companies, he took the checks, but did not accept same in full settlement; that Mr. Howard's office was called and the representative said the matter would be "straightened out."

Y. A. Cole, the local agent of appellant, Federal Union Insurance Company, testified that he had nothing to do with the adjustment, but he understood the amount agreed on was $ 2,650, and that the loss was pro rated between the two companies; that he made a memorandum of what his company was to pay, and when the checks came in, the check from his company was less than his memorandum; that the total of the two checks was over $ 100 short of the settlement; that Mr. Lyle said a mistake had been made and they got in touch with the adjuster who said that he did not think a mistake had been made, but that he would send to his home office and secure the work sheet, and that the adjuster agreed to take it up with the companies to reopen the case. He denied that he had told Mr. Lyle to receive and cash the checks, but testified that at the time Mr. Lyle accepted the drafts from him he said he was taking the drafts under protest and would sue if the matter was not adjusted, and that he thereupon told Mr. Lyle the matter would be "ironed out."

Buck Pryor testified that he was part owner of the United Insurance Agencies and was agent for the Hartford Fire Insurance Company, appellee; that the loss was reported and left to Mr. Howard; that he had no information from Mr. Howard as to the amount he owed, but Mr. Lyle claimed the amount was $ 2,700; that Mr. Lyle refused to accept the checks when they were first presented to him because they were for the wrong amount; that he finally accepted them under protest.

Herschel McCracken testified that he made an estimate of the fire loss, placing the amount at $ 3,297.39.

J. M. Swanson testified that he had made an estimate of the loss on the Lyle house, placing same at $ 3,257.

At the conclusion of appellants' testimony, appellees moved for a directed verdict, which was denied, and the court thereupon instructed the jury, over appellants' objection, to return a verdict for the sum of $ 104.38, this being the difference between $ 2,650, which appellants claimed was the amount agreed upon, and $ 2,545.62, the total of the two drafts which appellants received and cashed.

Appellants filed motion for new trial, which was overruled and appellants prayed and were granted an appeal to this court. Appellees have cross-appealed, but since they failed to file motion for new trial their cross-appeal may not be considered by us. St. L. S.W. Ry. Co. v. Alverson, 168 Ark. 662, 271 S.W. 27; Stacy v. Edwards, 178 Ark. 911, 12 S.W.2d 901; Aetna Life Ins. Co. v. Martin, 192 Ark. 860, 96 S.W.2d 327; The Equitable Life Assur. Soc. v. Barton, 192 Ark. 984, 96 S.W.2d 480.

The testimony adduced in the lower court tended to establish that the damage by fire to the dwelling house of appellants amounted to $ 3,297.39, and that an agreement had been made between appellants and the adjuster acting for appellees for a settlement of the amount due under the two policies herein involved on payment to appellants by appellees of the sum of $ 2.650. This settlement constituted a liquidation of the amount of the claim, so that, when the drafts were made out and transmitted, there was no dispute as to the amount due, because, according to the testimony, appellants had agreed to accept and appellees had agreed to pay the sum of $ 2,650 in settlement of all liability under the two policies. The claim was, therefore, under the testimony adduced on behalf of appellants, a liquidated one, and the cases cited by appellees, wherein it was held that acceptance of a draft, carrying a notation to the effect that it was payment in full, in settlement of an unliquidated or disputed claim, even though it is accepted unwillingly and under protest, is a bar to future action, are not applicable.

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