National Union Fire Insurance Co. v. Halfacre

• Decision Date: 06 February 1928
• Docket Number: 178
• Citation: 2 S.W.2d 4,176 Ark. 183
• Parties: NATIONAL UNION FIRE INSURANCE COMPANY v. HALFACRE
• Court: Arkansas Supreme Court

2 S.W.2d 4

176 Ark. 183

NATIONAL UNION FIRE INSURANCE COMPANY v. HALFACRE

No. 178

Supreme Court of Arkansas

February 6, 1928

Appeal from Independence Circuit Court; S. M. Bone, Judge; affirmed.

STATEMENT OF FACTS.

This appeal is prosecuted by the insurance company from a judgment rendered against it for the amount of the loss claimed to be due under its policy issued to appellee, with penalties and attorney's fees.

The answer of the defendant admitted the issuance of the policy to the plaintiff, insuring him in the sum of $ 550 on household goods and $ 250 on hay, grain, saddles, etc., in his barn, but denied any liability under the policy, because it had not been furnished with an itemized proof of loss, or any proof of loss at all, within 60 days from the date of the fire, as required by the terms of the policy; denied that the fire which caused the loss occurred on the 29th day of April 1926, as alleged, and denied the right of plaintiff to maintain his action, because he had refused to submit to an examination under oath, according to the terms of the policy. The amendment to its answer alleged that the purported proof of loss was insufficient, and no such proof of loss as was required under the terms of the policy, setting out the alleged defects.

The testimony shows that the fire which destroyed the property started before midnight on the 26th day of April, 1926, and continued into the morning of the 27th; that appellee notified J. Rich, the agent who wrote and delivered the policy to him, and was told by the agent that he had notified the company of the loss.

Rich asked him for a list of the property destroyed, and gave him one of his books to make the list on. Witness made the list of the stuff on the book and gave it back to the agent, who said it was all right, that he would notify the company, and an adjuster would be sent to see him, and about a week later Mr. Gumm, the adjuster, came out, and he had the list of property lost that witness had given to the agent. That the adjuster came to see him three times, offered him about one-half the amount witness claimed to have lost, and finally said the proof of loss was not satisfactory, and witness, on June 28, had his attorney to fix up a proof of loss which was sworn to by him and sent to the company by registered mail on that day.

The suit was brought on the 13th day of November, 1926, and appellee, a few days before the trial, on day of , 1927 refused, on the advice of his attorney, to undergo an examination under oath by the attorney representing the company in the lawsuit.

The insurance agent admitted that he wrote the policy, and was notified by the insured of the loss, and his record showed that he had notified the company, on April 30, of the loss which had occurred on April 28, at 12:30 A. M. Said he did not tell insured that he had complied with the terms of the policy, but told him that he had already notified the company of the loss, and received a notice from them that they had turned the claim over to the Southwestern Adjustment Company and that he either wrote to the adjustment company and received an answer or that the insured brought the adjustment company's letter and showed it to him.

The letter stated that he had not complied with the policy, and witness told him...