Millers Mut. Fire Ins. Co. of Tex. v. Russell, 5--4919

• Decision Date: 09 June 1969
• Docket Number: No. 5--4919,5--4919
• Citation: 443 S.W.2d 536,246 Ark. 1295
• Parties: The MILLERS MUTUAL FIRE INSURANCE COMPANY OF TEXAS, Appellant, v. David RUSSELL et al., Appellees.
• Court: Arkansas Supreme Court

Page 536

443 S.W.2d 536

246 Ark. 1295

The MILLERS MUTUAL FIRE INSURANCE COMPANY OF TEXAS, Appellant, v. David RUSSELL et al., Appellees.

No. 5--4919.

Supreme Court of Arkansas.

June 9, 1969.

Rehearing Denied Aug. 25, 1969.

Wright, Lindsey & Jennings, Little Rock, for appellant.

Frank H. Cox, Little Rock, for appellee, Russell.

Hall, Tucker & Lovell, Benton, and Rose, Meek, House, Barron, Nash & Williamson, Little Rock, for appellee, Nelson.

HOLT, Justice.

The appellee, David Russell, brought this action to recover on a fire insurance policy in the amount of $9,000.00 together with a twelve percent penalty and attorney's fee as provided by Ark.Stat.Ann. § 66--3238 (1966 Repl.). The appellee, Herman Nelson, and the Veterans' Administration, were made parties to the action for the purpose of determining their respective interests in the property destroyed by fire. The appellant insurer, the Millers Mutual Fire Insurance Company of Texas, denied coverage in its answer, relying upon the clause in the policy suspending the insurance 'while the hazard is increased by any means within the control or knowledge of the insured.' The appellant cross-complained against appellee, Nelson, for any amounts which it might be adjudged to pay as a result of the suit on the policy. During the trial, the appellant admitted liability as to the interest of the Veterans' Administration as a mortgagee. The trial court directed a verdict in favor of appellee Russell for the full amount of the policy coverage, including penalties and attorney fees. The trial court refused to direct a verdict in favor of appellant against appellee Nelson for any of the amounts it was liable to pay under the policy. The appellant's claim against appellee Nelson was submitted to the jury which returned a verdict in favor of appellant in the amount of $72.44. This represented an uncollected increase in premium.

For reversal of the judgment, the appellant contends that the lower court erred in failing to direct a verdict for appellant on its cross-complaint against appellee Nelson for the full amount of any judgment rendered against appellant. We do not agree.

When the policy was first issued by the appellant, the building was covered as a 'frame, approved roofing, one-family, tenant dwelling.' It was owned by appellee Nelson, an independent insurance agent, who had been appellant's agent since 1951. A standard mortgagee clause provided coverage for the Veterans' Administration as a mortgagee. The policy contained the following provision:

'Conditions Suspending or Restricting Insurance. Unless provided in writing adding hereto, this company shall not be liable for loss occurring.

(a) While the hazard is increased by any means within the control or knowledge of the insured * * *'

The insured building was used as a residence until it was sold in October, 1966 by appellee Nelson to appellee Russell who used it as a terminal for his trucking company until September, 1967 when it was completely destroyed by fire.

Nelson learned in February 1967 of the change in the use of the building and promptly requested an inspection and rating from the Arkansas Inspection and Rating Bureau in order to determine the premium rate to be applied to the new use of the building. About the same time, Nelson issued an endorsement which amended the name of the insured on the policy to read: 'Herman Nelson, Vendor, David Russell, Vendee.' This endorsement was sent to the appellant. In March, Nelson received a rating notification from the bureau that the building was classified for insurance rating purposes as 'office occupancy, frame, unprotected', which is a risk unacceptable to appellant according to an underwriting guide for its agents.

This classification reflected an increase in the hazard and a corresponding increase in premiums if accepted. The change in rate was approximately six times greater than the rate that was being paid. Upon a routine billing by Nelson's office, this lower annual premium was paid in April by the Veterans' Administration, the mortgagee. This premium was forwarded by Nelson, less his commission, to the appellant. Nelson never notified appellant of the change in use or occupancy of the building. According to him, this was due to his understanding that appellee Russell was in the process of placing his insurance elsewhere.

The issue of the negligence of appellant's agent, appellee Nelson, was submitted to the jury upon proper instructions and approved by the appellant. The jury found from an interrogatory that Nelson knew, or should have known, that the risk or hazard was increased by appellee Russell's use of the building. In another interrogatory, the jury found that appellee Nelson did not know, nor should have known, that the risk in insuring the property as a truck terminal was a prohibited risk for which appellant would not extend coverage. As stated previously, the jury awarded $72.44 to the appellant for the increase in premium for the added risk.

In determining whether the trial court should direct a verdict, we review the evidence on appeal most favorable to the party against whom the directed verdict is requested. It is not error for the trial court to refuse the request if there is any substantial evidence tending to establish the issue favorable to the party against whom the request is made. Home Mutual Fire Insurance Company v. Cartmell, 245 Ark. 44, 430 S.W.2d 849 (1968); Barrentine v. Henry Wrape Company, 120 Ark. 206, 179 S.W. 328 (1915); Yahraus v. Continental Oil Company, 218 Ark. 872, 239 S.W.2d 594 (1951). In the case at bar, appellee Nelson had been an agent of appellant for approximately seventeen years. He admitted that he determined there was an increase due in the premium rate and that he failed to collect and...