Planters' Fire Ins. Co. v. Nichols

• Decision Date: 06 May 1912
• Citation: 147 S.W. 68
• Parties: PLANTERS' FIRE INS. CO. v. NICHOLS.
• Court: Arkansas Supreme Court

Page 68

147 S.W. 68

PLANTERS' FIRE INS. CO. v. NICHOLS.

Supreme Court of Arkansas.

May 6, 1912.

Appeal from Circuit Court, Franklin County; Jeptha H. Evans, Judge.

Action by A. J. Nichols against the Planters' Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. W. & J. W. House, Jr., of Little Rock, for appellant. Sam R. Chew, of Little Rock, for appellee.

McCULLOCH, C. J.

This is an action instituted by appellee against appellant on a fire insurance policy for the sum of $1,000 issued by the company on appellee's stock of goods. Appellee was a country merchant, and the policy was issued on January 23, 1911, and the fire occurred on June 6, 1911; the stock of goods being totally destroyed. He had concurrent insurance in another company in the sum of $1,000, and claims that the stock of goods was of the value of $3,924 at the time of the fire. He recovered judgment below for the full amount of the policy, and the company appealed. Shortly after the fire occurred, the insurance adjusters visited the place where appellee lived and a settlement was negotiated between appellee and each of the companies for payment of the sum of $599.64. The adjusters prepared proof of loss, showing amount of stock on hand, and after deducting one-fourth under what is termed the "three-fourths loss" clause, and also after deducting the cash discount, left the amount of the alleged settlement $566.64, and subsequently the company forwarded to appellee its check for that amount, but appellee returned it in a letter dated July 15, 1911, in which he declined to accept it in satisfaction of the amount due under the policy, but offered to accept the same in part payment. It does not appear that the check was ever sent back to him, and this action was instituted on August 8, 1911. The details of that alleged settlement were not gone into very thoroughly in the trial, which was before the court sitting as a jury, though appellee was asked some questions with reference to it and stated that he did not know anything about the proof of loss, but had signed a paper upon the assurance of the adjusters that they would "treat him right." It seems that he was sick at the time, and a relative of his conferred with the adjusters. It is not insisted here that appellee is bound by that settlement, and appellant's defense was not presented along that line in the lower court, so we need not discuss that feature of the case any further.

It is insisted, however, by learned counsel for appellant that, after appellee's refusal to abide by the alleged settlement and the proof of loss made pursuant thereto, he should have made an additional proof of loss showing that he was entitled to the amount of the $1,000 claimed. They argue now that the failure to furnish additional proof of loss was a violation of the terms of the policy, and that no recovery can be had for the additional amount. The difficulty with this contention is that failure to make proof of loss was not pleaded in the answer. There is no reference in the answer to that clause of the policy which required the furnishing of proof of loss as a condition of recovery. It is too late now to...