National Union Fire Ins. Co. v. Crabtree

• Decision Date: 06 February 1922
• Docket Number: (No. 129.)
• Citation: 237 S.W. 97
• Parties: NATIONAL UNION FIRE INS. CO. v. CRABTREE et al.
• Court: Arkansas Supreme Court

237 S.W. 97

NATIONAL UNION FIRE INS. CO. v. CRABTREE et al.

(No. 129.)

Supreme Court of Arkansas.

February 6, 1922.

Appeal from Circuit Court, Miller County; George R. Haynie, Judge.

Action by W. R. Crabtree and others against the National Union Fire Insurance Company. Judgment for plaintiffs, and defendant appeals. Reversed in part, and affirmed in part.

Arnold & Arnold, of Texarkana, for appellant.

M. E. Sanderson, of Texarkana, for appellees.

McCULLOCH, C. J.

Appellant is a foreign corporation engaged in the insurance business, and issued to W. R. Crabtree, one of the appellees, its policy insuring in the sum of $900 against loss by theft of his automobile. The automobile was stolen a few months after the issuance of the policy and was never recovered. The policy was issued by a local agency having express authority from appellant to solicit and receive applications, sign and deliver policies, and collect premiums. Immediately after the theft occurred Crabtree notified the local agents in accordance with the terms of the policy, which provided that immediate notice should be given such agents in the case of loss. The policy further provided that proof of loss should be made within 60 days. Crabtree had repeated conversations with one of the local agents, according to his testimony, in which he gave the agent information concerning the description of the car, and he testified that the agent, after obtaining the necessary information, made this statement to him:

"We look after the car for you. If we don't get it inside of 60 days, we will pay you your money; you'll get paid for it. You can just go home and rest contented now; you needn't worry about the car; we'll find the car or pay for it inside of 60 days."

Proof of loss was not furnished as required by the policy, and this suit was instituted by Crabtree, with whom was joined Williamson & Timberlake, who held a mortgage on the car executed prior to the issuance of the policy.

There were two defenses offered in the answer — one that there was a breach of the conditions of the policy concerning incumbrance on the property insured; and the other the failure of the assured to make proof of loss.

There was some testimony adduced tending to show that at the time the policy was issued the assured informed the local agent of the fact that the car was mortgaged, and this question was submitted to the jury under proper instructions. It is not contended that the evidence is insufficient to support the finding in favor of appellees on that issue, nor is it contended under the law that the facts as might have been found by the jury were sufficient to constitute a waiver of this breach. Commercial Fire Ins. Co. v. Belk 88 Ark. 506, 115 S. W. 172; German-American Ins. Co. v. Humphrey, 62 Ark. 348, 35 S. W. 428, 54 Am. St. Rep. 297, and other cases.

The sole ground urged for reversal is that there was no waiver of the failure to furnish proof of loss for the reason that the local agents had no authority to make such waiver. It must be conceded that there was no waiver unless it is within the scope or apparent scope of the local agent's authority to adjust losses and waive proof of loss. If not, there is no waiver in this...