Planters' Mut. Ins. Co. v. Hamilton

• Decision Date: 04 November 1905
• Citation: 90 S.W. 283
• Parties: PLANTERS' MUT. INS. CO. v. HAMILTON.
• Court: Arkansas Supreme Court

Page 283

90 S.W. 283

PLANTERS' MUT. INS. CO. v. HAMILTON.

Supreme Court of Arkansas.

November 4, 1905.

Appeal from Circuit Court, Pulaski County; E. W. Winfield, Judge.

Action by L. D. Hamilton against the Planters' Mutual Insurance Company. Judgment for plaintiff. Defendant appeals. Affirmed.

W. R. F. Paine and J. W. & M. House, for appellant. Pugh & Wiley, for appellee.

McCULLOCH, J.

This is an action brought by appellee, L. D. Hamilton, against appellant, in the circuit court of Pulaski county, to recover the amount of two policies of insurance issued to him by appellant, one for $200 upon his stock of merchandise and $600 on frame store building, and the other for $300 on stock of merchandise. The policies were issued on December 1, 1902, and March 21, 1903, respectively, and the property was destroyed by fire on May 27, 1903. The plaintiff alleged in his complaint that he had fully complied with all the requirements of the policy. The defendant, among other defenses, pleaded that the loss was caused by the wrongful act of the plaintiff in setting fire to his property, or causing it to be done, and much testimony, pro and con, was introduced upon this issue. There was sufficient testimony to have warranted a finding either way on that question, and it must be treated as finally settled by the verdict of the jury in favor of the plaintiff.

Learned counsel for appellant contend that the policy on the building was void because, as they now allege, it was assigned to W. H. Taylor before the fire without the knowledge or consent of the company. The facts appear to be that appellee was indebted to Taylor for the purchase price of the lot on which the building was situated, and soon after the issuance of the policy one Davis, a soliciting agent for appellant, attached to the policy a clause providing that "any loss that may be ascertained and proven to be due the assured under this policy shall be payable to W. H. Taylor as his interest may appear to $200." This was signed, "Thos. H. Davis, Agent." The testimony was uncertain as to whether the company actually received notice of this clause having been attached to the policy. Davis testified that he sent notice thereof by a messenger to the home office of the company, and Taylor testified that he called at the office before the fire, and, upon inquiry, a lady in charge of the office informed him that the clause had been indorsed upon the record of the policy. Appellant introduced no proof on the subject. If we hold that the proof failed to show notice of this clause to the proper officers or authorized agents of the company, and that it constituted an assignment by the insured (which we do not deem it necessary to decide now), still it was not pleaded below, and cannot be insisted upon here. The case cannot be determined here upon issues which were not properly raised and relied upon below. Greenwich Ins. Co. v. State, 84 S. W. 1025. It was not set forth as a defense in the answer, and no instructions were asked or...