National Union Fire Insurance Co. v. School District No. 60

• Decision Date: 17 December 1917
• Docket Number: 56
• Parties: NATIONAL UNION FIRE INSURANCE CO. v. SCHOOL DISTRICT No. 60
• Court: Arkansas Supreme Court

199 S.W. 924

131 Ark. 547

NATIONAL UNION FIRE INSURANCE CO. v. SCHOOL DISTRICT No. 60

No. 56

Supreme Court of Arkansas

December 17, 1917

Appeal from Washington Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

J. W Grabiel, for appellant.

1. The court erred in overruling the demurrer. The complaint does not allege the performance of the conditions precedent in the policy. 38 Ark. 127; Gould on Pleading (3 ed.) 175; 10 Ark 416; Kirby's Digest, §§ 623, 6119.

2. The court erred in its charge to the jury as to substantial compliance with the conditions of the contract. 57 Ark. 461.

3. It was error to refuse an instructed verdict for defendant. The liability has been fully settled. 93 Ark. 383. There was no fraud or mistake.

4. Testimony as to the condition of the school in February 1917, was improperly admitted.

H. L. Pearson, for appellee.

1. The complaint stated a good cause of action. All conditions precedent were waived. 83 Ark. 126; 74 Id. 72; 77 Id. 27; 94 Id. 21; 79 Id. 266; 77 Id. 41; 72 Id. 365; 89 Id. 111; 94 Id. 227; 83 Id. 575; 33 Id. 428.

2. The instructions given are correct. But no proper exceptions were saved and no request for other instructions asked. 111 Ark. 231; 116 Id. 260; 110 Id. 209; 106 Id. 315.

3. The payment was not in full, as there was a mutual mistake. 86 N.W. 32; 70 Id. 761; 24 So. 936.

HUMPHREYS, J. MCCULLOCH, C. J., dissenting.

OPINION

HUMPHREYS, J.

Appellee instituted suit in the Washington Circuit Court against appellant on a tornado insurance policy for damages alleged to have been done to its school building by a storm on May 20, 1916. The west end of the building was blown off the foundation five or six feet and the east end five or six inches. The policy was made a part of the complaint and contained a "loss proof" clause to the effect that appellee would make written proof under oath of any loss that might occur within sixty days from the date of the loss. It also contained a conditional arbitration clause and other clauses of like nature unnecessary to set out in this opinion, as no dispute arose in the case concerning them.

A general demurrer was filed to the complaint charging that it failed to state a cause of action. The demurrer was overruled and appellant saved its exception to this ruling of the court.

Appellant then filed an answer, reserving all rights under the demurrer. The answer admitted the issuance of the policy and that it was in force and effect on the 20th day of May, 1916; but denied that the school building was injured by tornado or wind storm or both; denied that the district suffered damage in the amount of $ 400, or that it was indebted to the school district in any sum whatever. By way of further defense, it alleged that if the school district suffered any damage by reason of a casualty covered by the policy, same had been proved, adjusted, compromised and paid by appellant; and specifically alleged that appellee filed its proof of loss on account of the damage on May 20, 1916, mentioned in the complaint, and that same was fully adjusted and paid by appellant. Appellee filed reply, denying that the loss pleaded in the complaint had been proved, adjusted, compromised and paid by appellant; and denied that appellee had filed proof of the loss covering damage on May 20, 1916, mentioned in the complaint; and denied that any payment was made or offered because of such casualty, loss or damage set up in the complaint.

The cause was heard upon the pleadings, oral evidence and instructions of the court and a verdict rendered in favor of appellee for $ 240, upon which judgment was rendered.

The necessary proceedings were had and done and an appeal has been prosecuted to this court.

The first contention made by appellant for reversal is that the complaint failed to state a cause of action in not pleading performance by appellee of the conditions precedent in the policy. It will be observed the demurrer is general. It does not point out any specific condition in the policy as being a condition precedent. The record does not disclose that appellant pointed out to the circuit court the defect in the pleadings he now complains of. So far as the record speaks, he now, for the first time, insists that the complaint should have averred that appellee had performed all the conditions precedent in the policy or should have alleged the waiver of said conditions by appellant. Even now appellant does not point to any particular provision in the policy as a condition precedent to recovery. It is alleged in the answer that appellee made proof of loss in accordance with the requirements of the policy, therefore no prejudice resulted to appellant according to its own allegations on account of appellee's failure to plead performance in this particular. Appellant also pleaded by way of answer a compromise settlement and payment of the loss incurred by tornado or wind storm on May 20, 1916, and went to trial on that issue. This clearly constituted a waiver of the conditions precedent in the policy, and, therefore, no prejudice resulted to appellant on account of the failure to plead performance on its part or waiver on appellant's part. Learned counsel for appellant is correct in his contention that when instruments providing for mutual undertakings are made the basis of actions at law, the rule of pleading requires that the plaintiff allege performance of all conditions precedent on his part or a waiver of them by the defendant. This abstract proposition of law can not be gainsaid. It is also true, however, that before an erroneous declaration or application of law by a trial court can avail a party on appeal, he must show that he was prejudiced thereby. No prejudicial error resulted to appellant on account of the action of the court in overruling the demurrer.

But it is insisted that the court erred in submitting to the jury the question of whether the appellee had substantially complied with the conditions of the contract when the pleadings did not aver a substantial compliance, and when no proof was offered upon that issue. It is true an instruction has no place in the case if not responsive to the issues presented by the facts and pleadings, treated as amended to conform to the facts; but as stated with reference to overruling the demurrer in this case, if no prejudice resulted to appellant by the action of the court, the giving of such instructions can not work a reversal of the case. In two instructions given by the court on other issues in the case, the court predicated the right of appellee to recover upon a showing that it had substantially complied with the contract in all things on its part. Compliance with the conditions of the policy not being an issue in the case, the submission of that question to the jury placed a burden upon appellee that might have resulted in prejudice to it, but in no view of the case, could have resulted in prejudice to appellant, for the undisputed evidence showed that all conditions precedent contained in the policy were either complied with by appellee or waived by appellant. Appellant does not contend that appellee failed to comply with the conditions imposed by the policy. Unless there was a failure on the part of appellee to comply with the contractual conditions in the policy, no real prejudice resulted to appellant by the erroneous trend or course of the trial.

Again, it is contended that appellant was entitled to a peremptory instruction for the reason that there was a complete settlement of the liability sued on. The building was repaired after it was damaged by the wind storm and paid for out of a check issued by the insurance company to the school district. One of the disputed facts in the case was which of the two parties assumed to make the repairs. The evidence was conflicting on the point. T. N. Sondgrass, who moved the building back on the foundation, and two of the directors, W. J. Vawter and C. M. Buttry, testified that Jones employed Snodgrass to repair the building. W. W. Jones testified to the contrary, stating that he agreed to make the repairs but that he employed Snodgrass at the instance of and for the board of directors. That question was submitted to the jury under proper instructions, and the finding of the jury was adverse to appellant. There was ample evidence in the record to support the finding of the jury to the effect that the insurance company assumed to and did make the repairs.

After the repairs were made and the costs thereof ascertained, the directors made proof of loss. Thereupon, a draft was issued to the school district by the insurance company, which is as follows:

"Loss No. 20493.

Pittsburgh, Pa., July 19, 1916.

"Draft No. 32128.

"Upon acceptance by the National Union Fire Insurance Company,

"The National Bank, Pittsburgh, Pa.,

"Will pay to (School District No. 60 the order of) ninety-five and 14/100 dollars, which payment evidenced by proper endorsement hereof, constitutes full satisfaction, compromise and indemnity for all claims and demands for loss and damage by storm May 20, 1916, to property described in Policy No. T-16214, issued at its H. O. F. D. Prairie Grove, Ark., agency, and said policy is hereby reduced in the amount of claim $ 95. To the National Union Fire Insurance Company of Pittsburgh, Pa. Claim, $ 95.14.

"Discount, $ Net $ 95.14.

"Nelson Reid,

"Assistant Secretary."

The draft was endorsed by W. J. Vawter and C. M. Buttry, school directors of School District No. 60, and the proceeds thereof were apportioned among the parties who had assisted Snodgrass in repairing the building. Jones, the agent of the company and Vawter and Buttry, directors of the school district, had each performed some labor for...