National Union Fire Insurance Company v. Crabtree
| Decision Date | 06 February 1922 |
| Docket Number | 129 |
| Citation | 237 S.W. 97,151 Ark. 561 |
| Parties | NATIONAL UNION FIRE INSURANCE COMPANY v. CRABTREE |
| Court | Arkansas Supreme Court |
Appeal from Miller Circuit Court; George R. Haynie, Judge; reversed in part.
Judgment reversed in part and affirmed in part.
Arnold & Arnold, for appellant.
The court erred in assessing damages and attorney's fees. Sec. 6155, C. & M. Digest; 94 Ark. 578.
Failure to make proof of loss was not waived by the company. 67 Ark 584; 13 Ency. Ev. 1020; 29 Ency. Ev. 1105.
M E. Sanderson, for appellee.
There was no error in allowing attorney's fees and assessing damages. 94 Ark. 578; 86 Ark. 115.
Failure of defendant to preserve its exceptions to instructions in the motion for new trial waived its right to complain of the court's ruling. 131 Ark. 404.
The evidence was sufficient to show the agent's authority. 122 Ark. 357; 100 Ark. 212; 120 Ark. 268; 130 Ark. 86.
The act of the agent, within the scope of his agency, binds his principal. 132 Ark. 371; 103 Ark. 79; 94 Ark. 227.
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 sixty 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:
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 it is contended that the facts, as they might have been found by the jury, were not 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, 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 was within the scope or apparent scope of the local agents' authority to adjust losses and waive proof of loss; if not, there is no waiver in this case and there can be no recovery. The question of liability, therefore, turns upon the authority or apparent authority, of the local agents to make such waiver. If, as stated by appellee Crabtree, the local agent by a promise to look after the matter and to see that the policy was paid unless the car was found within sixty days, lulled him into a feeling of security and thereby induced him not to make the proof of less, this constituted a waiver of the forfeiture, if the agent had...
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