National Union Fire Ins. Co. v. Kent

• Decision Date: 25 February 1924
• Docket Number: (No. 189.)
• Citation: 259 S.W. 370
• Parties: NATIONAL UNION FIRE INS. CO. v. KENT.
• Court: Arkansas Supreme Court

259 S.W. 370

NATIONAL UNION FIRE INS. CO. v. KENT.

(No. 189.)

Supreme Court of Arkansas.

February 25, 1924.

Rehearing Denied March 24, 1924.

Appeal from Circuit Court, Independence County; Dene H. Coleman, Judge.

Action by Leslie Kent against the National Union Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. A. Watkins, of Little Rock, for appellant.

Samuel M. Casey, of Batesville, for appellee.

SMITH, J.

This suit was brought to collect from the appellant insurance company $1,000, the face of the policy, which had been written to cover a barn and the feed and grain and seed stored therein; $800 of the insurance was on the barn, $100 on the grain and seed, and $100 on the hay and fodder.

The answer denied liability on the ground that appellee, the insured, had falsely represented himself to be the sole owner, whereas he was in fact the owner of only an undivided interest as tenant in common with his mother and brothers and sisters, the deed to the land having been made to the mother and the four children jointly. The land covered by the deed was a small tract of land near the town of Sulphur Rock, in Independence county, Ark., and there was situated on it a residence in which the owners of the property lived, in addition to the barn covered by the policy of insurance.

Notwithstanding the fire occasioned a total loss an issue was made by the adjuster over the value of the barn, and a proof of loss was prepared and agreed to, which allowed $400 for depreciation in the value of the barn, and the insured agreed to accept $700 in full settlement of the company's liability. In the proof of loss the insured was recited to be the sole owner of the property insured, and the adjuster told the insured that the sum agreed upon would be paid upon production of evidence of ownership. This appellee said would be furnished by production of the deed under which his title had been derived, and the deed was sent to the adjuster. Upon examination of the deed it was disclosed that the insured was not the sole owner, but was a tenant in common with his mother and three brothers and sisters, they each owning an undivided one-fifth interest in the land. Thereupon the insurance company denied liability under the policy. Hence this suit.

The cause was heard by the court sitting as a jury, and without making or being asked to make specific findings the court made a general finding in favor of the insured, and rendered judgment accordingly. Thereafter judgment was rendered for the statutory penalty with an allowance for attorney's fees.

It is insisted that no recovery should have been permitted because of the breach of the warranty that appellee was the sole owner, and it was further insisted that no penalty or attorney's fees should be allowed because the proof of loss presented a claim for a sum less than the face of the policy. The testimony showed that the actual value of the property destroyed was $1,268.73.

The testimony shows, however, that the...