Phoeix Ins. Co. v. State

• Decision Date: 24 June 1905
• Parties: PHŒNIX INS. CO. v. STATE, to Use of SALINE RIVER SHINGLE & LUMBER CO.
• Court: Arkansas Supreme Court

88 S.W. 917

PHOENIX INS. CO. v. STATE, to Use of SALINE RIVER SHINGLE & LUMBER CO.

Supreme Court of Arkansas.

June 24, 1905.

Appeal from Cleveland Chancery Court; John M. Elliott, Chancellor.

Suit by the state, to the use of the Saline River Shingle & Lumber Company, against the Phœnix Insurance Company of Brooklyn. From a decree in favor of plaintiff, defendant appeals. Affirmed.

This is a suit brought in the chancery court by the state of Arkansas, for the use of the Saline River Shingle & Lumber Company, a domestic corporation, against the Phœnix Insurance Company of Brooklyn, a foreign insurance corporation doing business in the state, and the sureties on its bond, to reform a policy and to recover the amount thereof $2,000 and interest on account of loss by fire. Reformation of the policy is sought in two respects, viz.: First, that it was by mistake written to and in the name of W. S. Amis, the president of the Saline River Shingle & Lumber Company, and manager of its business, when it should have been written to and in the name of said corporation; second, that it was by mistake written "on a stock of lumber on his premises," when it should have been written "on a stock of lumber situated at and in plaintiff's loading shed." The undisputed facts of the case are as follows: The Saline River Shingle & Lumber Company was the owner of a mill and lot of lumber at a switch sometimes called "Poole," on the St. Louis Southwestern Railroad. W. S. Amis was the president of the company, and the manager of its business. A. B. Banks, an insurance agent at Fordyce, Ark., and agent of appellant and other insurance companies, had previously insured the property of the lumber company at the instance of Mr. Amis, the manager. On or about April 10, 1902, Amis applied to Banks for insurance on the property of the lumber company—$2,500 on the mill and $2,000 on lumber in the shed—which Banks agreed to do, and in a day or two wrote the policies by mistake in the name of Amis, and, instead of writing the lumber policy on lumber in loading shed, wrote it "on a stock of lumber on the premises." This policy was written in the Greenwich Insurance Company, and both policies were mailed to Amis at Rison, Ark., where he resided. On April 21, 1902, Banks received instructions from the Greenwich Insurance Company to cancel the policy or increase the rate of premium to 10 per cent., and on that date he wrote and mailed a letter to Amis, informing him of the requirement of the Greenwich Company, and saying: "I am canceling the lumber policy and rewriting same in the Phœnix of Brooklyn, and shall send you policy at once." He wrote the policy on April 23, 1902, which is the one in controversy, carrying into it the same mistakes hereinbefore set forth as to name of assured and description of property, and mailed it to Amis at Rison on that day. The lumber in the loading shed, shown to be of the value of $2,047, was destroyed by fire on the evening of April 23, 1902, at 7:30 or 8 o'clock. Mr. Amis testified that he received the policies of April 10th by mail, but did not discover the mistake therein until he received on April 22d, Mr. Banks' letter concerning cancellation of the Greenwich policy, and that he intended to go to Fordyce the next day (April 23d) to have the policies rewritten so as to correct the mistakes, but was unavoidably detained by other engagements; and that he received the Phœnix policy by mail on April 24th, the same having arrived at the postoffice at Rison the afternoon preceding. The defendant answered, denying all the allegations of the complaint, and pleading that the policy sued on was issued by the agent, Banks, without authority from...