Phoenix Insurance Co. v. Public Parks Amusement Co.

Decision Date14 November 1896
Citation37 S.W. 959,63 Ark. 187
PartiesPHOENIX INSURANCE COMPANY v. PUBLIC PARKS AMUSEMENT COMPANY
CourtArkansas Supreme Court

Appeal from Garland Circuit Court, ALEXANDER M. DUFFIE, Judge.

Judgment reversed and cause remanded for new trial.

Charles D. Greaves and Wood & Henderson for appellant.

The Public Parks Amusement Company was not the unconditional and exclusive owner of the property, and the policy was void. 123 Ind. 172; 70 Md. 538; 34 P. 140; 86 N.Y. 423; 57 How. Pr 222; 5 Bush, 186; 61 N.W. 722. A conditional sale passes no title until the conditions are performed. 47 Ark. 363; 48 id 160; ib. 273; 49 id. 63; 52 id. 164; 54 id. 478. The reprerentations and stipulations were material. They were warranties. Cases supra. The fact that a bond was given in the suit of the Embree-McLean Carriage Company does not change the legal status of the parties as to the ownership. If the carriage company won the suit, it would have the right to recover the specific property, regardless of the bond. 37 Ark. 544; 54 id. 121. An insurable interest is not sufficient; there must be ownership. 86 Ala. 189; 27 A. 1077; 22 N.E. 229; 96 Pa.St. 37; 36 La. An. 600; 9 So. 327; 17 id 326; 68 Mo. 127; 2 Pet. 25; 87 N.Y. 69; 41 Am. Rep. 359; 32 F. 640. The contract was entire, and, if void as to any portion of the property insured, was void as to all. 52 Ark. 257; 127 Mass. 555; 69 Iowa 202; 111 Ind. 90; 118 N.Y. 518; 8 L. R. A. 834, and note; 4 id. 759; 5 Cent. Rep. 484; 51 N.W. 555. By giving the mortgage of December 17, 1891, the policy was forfeited, and there was no waiver by appellant or any authorized agent. 85 N.Y. 278, 283; 49 Mo.App. 423; May on Ins. sec. 137A; ib. (3d Ed.), sec. 126, and note 3, p. 220; 117 U.S. 519; 95 U.S. 329; 96 id. 240; 2 Wood, Fire Ins. 841-846; 8 West. Rep. 815; 66 N.Y. 274; 33 N.J.L. 487. A local agent cannot waive conditions in a policy. 60 Ark. 532; 144 Mass. 43; 54 Ark. 78; 53 Vt. 418; 13 B. Mon. 400; 11 Kas. 533; 13 Gray, 79; 79 Pa. 475; 4 Abb. (N. Y.) App. 315; 9 Allen, 231; 2 Dak. 114; 73 N.Y. 5. There is no presumption of an agent's authority. It must be shown. 2 Wood, Fire Ins. 860; ib. 870, 888; 54 Ark. 78. The policy provided that no officer * * * could waive any of its terms or conditions, unless * * in writing, etc. This is valid, and prevents an oral waiver by any agent. 20 L. R. A. 267; 54 N.W. 18; 55 Cal. 408; 80 Hun, 251; 6 Gray, 169; 11 Cush. 265. The waiver must be in writing. 85 Ind. 362; 108 id. 270; 144 Mass. 43; 66 Cal. 6; 67 id. 621; 1 Allen, 294; 4 id. 116; 3 Gray, 583; 23 Wend. 260; 16 Pet. 495; 160 Pa.St. 229; 65 Hun, 621; 80 Wis. 393; 51 N.W. 455; 52 id. 754.

The inventory made for Reinman & Simon was improperly admitted in evidence. It was error also to allow the inventory and other papers to be sent to the jury room. 1 Cent. Rep. 599; 110 Pa.St. 548. Interest should only have been computed from the day the policy was payable, i. e., sixty days after receipt of proof of loss.

Geo. G. Latta and E. W. Rector for appellees.

The policy is not void because some of the property covered by was held under a conditional sale. No formal or written application was made, and hence no warranty as to title, and no concealment. An insurable interest is all that is required. 1 May on Ins. sec. 284, 285, 288, 287 C; 1 Wood on Ins. sec. 88; 29 Conn. 10; 36 Md. 102; 11 Am. Rep. 169; 2 Michigan Lawyer, 201; 26 Gratt. 871; 27 Am. Rep. 582; 95 U.S. 242; 31 Am. Rep. 741; 18 Mo. 262; 59 Am. Dec. 299; 117 Penn. St. 686; 70 Wis. 196; 5 Am. St. Rep. 159; 67 Miss. 620; 19 Am. St. Rep. 326; 52 Miss. 231; 132 Pa.St. 236; 145 id. 346; 93 Mich. 184; 32 Am. St. Rep. 497; 46 Mich. 15; 66 id. 98; 53 id. 306; 18 Am. Rep. 681; 95 U.S. 673. Only a stern legal necessity will induce such a construction as will nullify a policy. Courts will construe a contract of insurance liberally, so as to give it effect, rather than make it void. 2 Pet. 25; 18 Am. Rep. 681; 95 U.S. 673; 1 So. Dak. 342; 19 Am. St. Rep. 596; 47 W. W. 288; 53 Ark. 494. If there was a breach of warranty, it was waived by the adjustment of the case. 49 Wis. 89; 35 Am. Rep. 772; 62 N.Y. 85; 53 id. 144; 7 La. An. 218; 5 Rep. 490; 50 Ill. 111; 27 Barb. 354; 2 East, 469; Augell, Ins. sec. 409; May, Ins. sec. 575; 52 Ark. 11; 53 id. 215; 53 id. 494. This is a different case from 52 Ark. 257, and the doctrine in that case should not be applied to this. The court should be guided by a respect to general convenience and equity, bearing in mind that the law leans strongly against forfeitures. The contract should be held separable. 27 Am. Rep. 584; 49 Ohio St. 10; 34 id. 365. In answer to the contention that the policy was forfeited by the mortgage of December 17, 1891, we submit (1) that lawful notice was given of same, and (2) that the provision requiring written notice and the company's assent was waived. 2 Wood, Ins. sec. 430, 392; 53 Ark. 494. The inventory facilitated plaintiff in identifying and valuing the property destroyed and was admissible. The jury were simply allowed to refresh their memory from the papers sent to their room, and there was no abuse of discretion by the court, and no prejudice. Plaintiff was entitled to interest from date of the loss. 22 A. 655.

OPINION

BATTLE, J.

The Public Parks Amusement Company and Edward Butler sued the Phoenix Insurance Company on a policy of insurance. The pleadings in the action, so far as it is necessary to set them out in this opinion, are as follows: It is alleged in the complaint that the Public Parks Amusement Company was a corporation, and on the 14th day of November, 1891, was engaged in the general livery business in the city of Hot Springs, in this state, and was the owner of forty horses, of hacks, carriages, buggies, carts, wagons, and other property, which were used in their livery business. On the 12th of September, 1891, it executed a deed of trust to John Loughran, and thereby conveyed to him, as trustee, for the use and benefit of Edward Butler, the said horses, hacks, buggies, carts, wagons, and other property, to secure the payment of $ 10,346 which it owed to Butler, and on the 17th day of December, 1891, conveyed the same property by a deed of trust to the same trustee to secure the payment of $ 3,000 to the same beneficiary; and no part of these sums have been paid. On the 14th day of November, 1891, the defendant, in consideration of $ 87.50, executed to the Public Parks Amusement Company a policy of insurance for one year, and thereby agreed to indemnify said company against loss or damage by fire of or to the aforesaid property, to an amount not exceeding the actual value thereof, and in no event the sum of $ 2,500; loss, if any, payable to Edward Butler, as his interest might appear. On the 17th of May, 1892, said property was totally destroyed by fire. That the defendant is indebted to the plaintiff company, by reason of the foregoing facts, for the use and benefit of Edward Butler, in the sum of $ 2,500, for which it asked judgment.

The policy was filed with and made a part of the complaint. So much of it as we deem necessary to set out in this opinion is in the words and figures following: "The Phoenix Insurance Company of Brooklyn, N.Y. , in consideration of the conditions, limitations and requirements of this policy hereinafter mentioned, and of the receipt by said company of $ 87.50, will indemnify Public Parks and Amusement Company against loss or damage by fire, to the following specified or located property, only to an amount not exceeding the actual cash value of the property herein described, at the time of such loss, and in no event to exceed twenty-five hundred dollars, as follows: "$ 1,250 on their forty horses, not to exceed $ 125 on any one horse in case of loss; $ 875 on their rolling stock and vehicles of all kinds, including hacks, carriages, buggies, carts, and wagons; $ 375 on their harness, saddles, bridles, whips, blankets, robes, office and stable furniture, and fixtures of all kinds, including feed on hand,--all while contained in the one-story frame, metal and shingle roof building, known as the "Metropolitan Livery Stables. * * * * Other concurrent insurance permitted, subject to three-quarter loss clause. Loss, if any, payable to Edward Butler, as his interest may appear. * * * If the interest of the assured in the property be other than an unconditional, exclusive ownership; and, if it be real property, if it be other than an absolute fee simple title, or if any other person or persons have any interest whatever in the property described, whether it be real estate or personal property, or if the building insured by this policy stands on leased ground, or if there be a mortgage or other incumbrance thereon, building or contents or any part thereof, whether inquired about or not, it must be so notified to the company, and be so expressed in the written part of this policy; otherwise, the policy shall be void. When the property insured shall be sold or incumbered or otherwise disposed of, written notice shall be given to the company of such sale or incumbrance or disposal, and its assent thereto endorsed hereon; otherwise, this insurance on said properly shall immediately terminate. * * * * That no agent or other representative of this company (excepting only the principal officers of the company at New York and its general agent at Chicago) shall have any power to waive or in any manner to modify any provision or condition of this policy, except such as, by the terms of this policy, may be subject of agreement indorsed hereon or added hereto; and as to such provisions and conditions no agent or representative, except as above mentioned, shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any,...

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