Phoenix Ins. Co. v. Minner

• Decision Date: 15 January 1898
• Citation: 44 S.W. 75
• Parties: PHOENIX INS. CO. v. MINNER.
• Court: Arkansas Supreme Court

44 S.W. 75

PHŒNIX INS. CO. v. MINNER.

Supreme Court of Arkansas.

January 15, 1898.

Appeal from circuit court, Randolph county; John C. Hawthorne, Special Judge.

The appellee, Ira A. B. Minner, brought this suit in the Randolph circuit court against the appellant, the Phœnix Insurance Company, on a fire insurance policy issued by the appellant to him on the 23d of September, 1893, insuring the appellee for one year from that date against loss by fire and lightning on certain property, to the amount of $1,620, apportioned as follows: Dwelling, $1,000; household furniture, $200; parlor melodeon, $50; sewing machine. $20; barn, $200; and farm produce, $150. The amended complaint of plaintiff alleges that the defendant company issued to plaintiff a policy for the sum of $1,620 on the above-described property; that, while the policy was in full force and effect, the said dwelling, of the value of $1,000, household furniture, of the value of $200, and sewing machine, of the value of $20, were wholly destroyed by fire, which occurred without plaintiff's fault or negligence; that due notice of loss was given as required by the policy; and that the plaintiff is damaged by said loss as above set forth in the sum of $1,220, which the defendant refuses to pay. Plaintiff makes the policy a part of his amended complaint. The answer of appellant admits that it issued the policy to plaintiff as alleged, subject to the terms, conditions, agreements, and representations contained in said policy and the application made by the plaintiff for insurance; the application being made a part of the answer. The answer denies that the property was destroyed without the knowledge, fault, or negligence of the plaintiff, denies that notice and proof of said loss were given by plaintiff as required, and alleges that it never waived such notice or proof of loss, and denies that appellee is damaged as alleged. As a further defense, defendant alleges that plaintiff made false and fraudulent statements in his application for insurance, which were unknown to it, and which induced it to issue the policy (the said false and fraudulent representations are particularly set out in the answer, of which the application is made a part); that the truthfulness of the representations in the application was made a warranty, and it was agreed in the policy that any false representations in the application should render the policy void. The evidence having been introduced, the defendant asked the following instructions: "(2) The jury are instructed that if they find from the evidence that, by the terms of the contract of insurance sued upon, the plaintiff was required to furnish or submit to the defendant proofs of his loss, in a certain prescribed manner, before the loss would become payable, then, in that event, it would devolve on the plaintiff to show, before he can recover, either that he did furnish proofs in manner required, or that the defendant company waived the same, by agent properly authorized. And if you should find from the evidence that no proofs of loss were submitted, as required by the terms of the policy, prior to the institution of this suit, and should further find that the defendant company never waived such proofs, then you will find for the defendant." The court refused to give the said instruction as asked, to which ruling of the court the defendant at the time excepted. The court thereupon modified the said second instruction, and gave it as modified, as follows: "The jury are instructed that if they find from the evidence that, by the terms of the contract of insurance here sued upon, the plaintiff was required to furnish or submit to the defendant company proofs of loss, in a certain prescribed manner, before the loss would become payable, then and in that event it would devolve on the plaintiff to show, before he can recover, either that he did furnish proofs in the manner required, or that the defendant company waived same, by agent having proper authority. And if you should find from the evidence that no proofs of loss were submitted, as required by the terms of the policy prior to the institution of this suit, and should further find that the defendant company never waived such proofs, then you will find for the defendant. But if you find that the defendant company refused to pay the loss upon the ground that the plaintiff made false or untrue representations in his application for the policy sued on, or was guilty of burning his house, you will be authorized to find that the defendant waived the proofs of loss." To the giving of which second instruction, as modified, the defendant at the time excepted, and had his exceptions noted of record. The court, on its own motion, gave the following instruction: "You are instructed that if you find for the plaintiff in this cause, and find that among other property insured was certain houses or real estate, and should find that the same was totally destroyed, then and in such event the amount of your finding as to that would be the amount for which same was insured, as, in a case of total destruction, it would be a liquidated demand for the amount for which it was insured." The jury returned a verdict for the plaintiff on August 2, 1895, and assessed his damages at $1,177....