Riverside Ins. Co. of America v. McGlothin

• Decision Date: 29 February 1960
• Docket Number: No. 5-2093,5-2093
• Citation: 231 Ark. 764,332 S.W.2d 486
• Parties: RIVERSIDE INSURANCE COMPANY OF AMERICA, Appellant, v. Delbert McGLOTHIN, Appellee.
• Court: Arkansas Supreme Court

Page 486

332 S.W.2d 486

231 Ark. 764

RIVERSIDE INSURANCE COMPANY OF AMERICA, Appellant, v. Delbert McGLOTHIN, Appellee.

No. 5-2093.

Supreme Court of Arkansas.

Feb. 29, 1960.

Pope, Pratt & Shamburger, by Richard L. Pratt, Little Rock, for appellant.

Griffin Smith, Little Rock, for appellee.

McFADDIN, Justice.

The question presented is, whether the insurance company, pleading an exception clause, has proved facts, in support of the exception, with such sufficiency as to entitle the insurance company to an instructed verdict. The Lower Court answered the question in the negative and rendered judgment in favor of the insured, McGlothin (plaintiff below), against the insurer, Riverside Insurance Company (defendant below), for $300 plus interest, penalty, and attorneys' fees. Such judgment is challenged by this appeal.

Riverside ¹ issued to McGlothin an insurance policy which insured the automobile and welding unit of McGlothin against loss or damage by fire. In the exclusion clause the policy provided: 'This policy does not apply * * * (under fire coverage) * * * to any damage to the automobile which is due and confined to * * * mechanical or electrical breakdown or failure, * * * unless such damage is the result of other loss covered by this policy.' The automobile was equipped with a welding unit, which had a gasoline driven machine and generator. While the policy was in force, the insured discovered flames coming from the welding unit. Prompt action extinguished the fire; but there was damage, which occasioned this litigation. The insured testified that he did not know what caused the fire. The welding unit and generator were taken to an electrical company for purposes of repair, and the owner of the electrical company testified for the plaintiff that the inner poles of the generator were burned. On cross examination this occurred:

'Q. Mr. Brown, you say the poles were burned. Actually in this motor, constituting the motor are four magnetic fields setting around the generator proper? A. Right. * * *

'Q. What was the cause of this fire? A. Well, the only cause I could find would be a short in the winding.

'Q. Electrical short in the wiring and setting of the fire. If the electrical short had occurred in the generator proper you know where the short was? A. Not exactly because I never tore it down to check it * * *

'Q. Now you don't know whether the short might have been in the armature or in the fields? A. I wouldn't know until I tore into it and find out. * * *

'Q. The electrical short caused the main part of the damage? A. Right.'

Riverside called no witnesses; and the Court rendered judgment for the plaintiff. On appeal, Riverside urges one point: 'The judgment is contrary to the law and the facts'. The case was tried before the Court, sitting as a...