Planters' Mut. Ins. Co. v. Loyd

• Decision Date: 20 June 1903
• Parties: PLANTERS' MUT. INS. CO. v. LOYD.
• Court: Arkansas Supreme Court

Page 725

75 S.W. 725

PLANTERS' MUT. INS. CO. v. LOYD.

Supreme Court of Arkansas.

June 20, 1903.

Appeal from Circuit Court, Little River County; Will P. Feazel, Judge.

Action by F. M. Loyd against the Planters' Mutual Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.

J. W. House, for appellant. L. A. Byrne, for appellee.

WOOD, J.

This is the second appeal in this case. The opinion in the first appeal is found in 67 Ark. 584, 56 S. W. 44, 77 Am. St. Rep. 136. The suit is on a policy of fire insurance. We reversed the cause on the first appeal, because the assured represented that the property insured was his property, when in fact it was the property of his wife. The representation was a warranty, and part of the contract of insurance. This and other grounds of forfeiture were urged at the second trial, and are presented on this appeal; but it suffices to say of these that the proof is sufficient to show that the forfeiture on these grounds was waived by the conduct of the company's adjuster.

When the cause was here before we did not pass upon the question as to whether or not the husband had an insurable interest in his wife's property, for the reason that the cause had to be reversed on another ground, and we did not know what the proof might develop on another trial. The proof on the last trial shows that the property was insured as the property of appellee; but the fact is the title was in his wife, and the property belonged to her. The appellant, by request for instructions, raised the issue that the husband cannot insure in his own name the property of his wife. Article 9, § 7, of the Constitution provides: "The real and personal property of any feme covert in this state, acquired either before or after marriage, whether by gift, grant, inheritance, devise or otherwise, shall, so long as she may choose, be and remain her separate property and estate, and may be devised, bequeathed, or conveyed by her the same as if she were a feme sole and the same shall not be subject to the debts of her husband." Section 4940, Sand. & H. Dig. In Agricultural Ins. Co. v. Montague, 38 Mich. 548, 31 Am. Rep. 326, Judge Cooley, speaking for the court, said: "But such a doctrine [that the husband can insure his wife's property] is at war with the fundamental principles of insurance, which require that a person shall have an insurable interest before he can insure. A policy issued where there is no such interest is void, and it is immaterial that it is taken in good faith and...