Southern Ins. Co. v. Hastings

• Decision Date: 03 July 1897
• Citation: 41 S.W. 1093
• Parties: SOUTHERN INS. CO. v. HASTINGS.
• Court: Arkansas Supreme Court

Page 1093

41 S.W. 1093

SOUTHERN INS. CO. v. HASTINGS.

Supreme Court of Arkansas.

July 3, 1897.

Appeal from circuit court, Conway county; Jeremiah G. Wallace, Judge.

Action by S. J. Hastings against the Southern Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Rose, Hemingway & Rose, for appellant. Carroll Armstrong and Ratcliffe & Fletcher, for appellee.

WOOD, J.

This suit is to recover upon a policy of fire insurance. The answer presented two defenses: "(1) In the application for insurance the insured answered falsely that the property was unencumbered; (2) that the property was destroyed, with the knowledge and consent of the assured, in order to collect the insurance money." The property insured was a gin house, various articles of machinery, cotton, and cotton seed. The total amount covered by the policy was $2,000. The policy was issued on the 1st day of October, 1893, and the property was destroyed by fire October 17, 1893. The application for insurance contained the following: "(8) Is the building mortgaged or incumbered? Ans. No. (9) What amount, if any, is unpaid on the machinery? Ans. $700.00." "(19) Have you in use feeders to each gin stand? Ans. Yes." Following the questions and answers in the application is a request for insurance, with a covenant that the answers are full, just, and true, and are considered the basis on which the insurance is to be effected, and are understood as being a part of the policy. The answers are made a warranty. The policy makes the application a warranty, and a part of the policy, and has a provision that, "if the assured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning the insurance, or the subject thereof, or if the interest of the insured in the property be not truly stated therein, the policy shall be void." Appellee testified: "I stood by, and saw Moose, the agent of the company, while he wrote the application. I can read and write. I told him that the lots were mortgaged to secure the Bolton debt. I didn't answer question 8 in the application, `No.' I told Mr. Moose that Dudley E. Jones had a mortgage on the boiler and engine, and Bolton on the land. I owed, at the time the insurance was taken out, to Dudley E. Jones about $300, Ed Hammond about $200, J. H. Jones about $175, and the Winship Company about $268; altogether about $740 on the gin, press, and boiler. There was due $900 on a mortgage on the land, and on my farm, but not for machinery. I had feeders and condensers. My condenser was in use, but the feeder was not. I told Moose the feeder was not up because I did not have an elevator." W. L. Moose testified: "I was the agent for the defendant at Morrilton at the time the policy was issued to Hastings. Hastings stood by and watched me write the application for a policy. I am quite sure he did not tell me the property was incumbered except as stated in the application. The reason I am so certain is because I had some trouble before, and I was careful to see that all the questions were clearly understood, and correctly written in the application." At the conclusion of the testimony of Hastings, the defendant (appellant) asked leave to amend its answer to show "that in the answer to question No. 10 in the application for insurance the plaintiff [appellee] stated that there was $700 due and unpaid on the machinery, when in truth there was due and unpaid $1,100 on that account; that said answer was a material misrepresentation of the condition and risk of said property." And when the evidence was all in, appellant asked leave to amend its answer to show "that the plaintiff [appellee], in answer to question No. 19, stated that he had feeders in use to each gin stand, when in fact he did not have any feeder in use; that his answer was false, and constituted a material misrepresentation as to the condition and risk of the property to be insured." The refusal of the court to allow these amendments presents the first question for decision.

1. The testimony of appellee shows that Dudley E. Jones had a mortgage on the boiler and engine for about $300. The proof of loss shows that there was a claim in favor of the Winship Company for the purchase money of the gin, feeder, and condenser, and the appellee testified that he owed the Winship Company about $268. It is also shown by the proof of loss that there was a mortgage on the press in favor of E. O. Hammond for $225, and appellee testified that he owed Ed Hammond about $200. The testimony of J. H. Jones shows that he sold appellee a mill, and appellee testified that he owed J. H. Jones about $175. So there can be no doubt that the proof shows that an amount aggregating $943 was unpaid on the machinery when the appellee...