Southern Insurance Co. v. White

• Decision Date: 09 December 1893
• Citation: 24 S.W. 425,58 Ark. 277
• Parties: SOUTHERN INSURANCE CO. v. WHITE
• Court: Arkansas Supreme Court

24 S.W. 425

58 Ark. 277

SOUTHERN INSURANCE CO. v. WHITE

Supreme Court of Arkansas

December 9, 1893

Appeal from Conway Circuit Court, JEREMIAH G. WALLACE, Judge.

Reversed and remanded.

Moose & Reid and Ratcliffe & Fletcher for appellant.

1. Randolph's testimony was admissible. The record of conviction should have been produced. 49 Ark. 156-8; 1 Gr Ev. sec. 375.

2. It was error for the court to say to the jury "If you can't get exactly what you want, get the next best thing to it." 29 N.E. 909; 42 Ind. 420; 126 id. 568; 10 N.W 44; 14 S.W. 538.

3. An application for an insurance policy is part of the contract and he who can read, and has warranted his answers to be true, will not be heard to say he was ignorant of its contents, in the absence of fraud or mistake. 2 S.E. 258. See also 26 P. 718; May on Insurance (2 ed.), secs. 156, 183, 185; 23 La. An. 209; 45 Wis. 622; 26 N.E. 230; 22 A. 107; 15 S.W. 166; 10 Ind. 187.

OPINION

WOOD, J.

This was an action against appellant to recover upon certain insurance policies; one issued the 10th of October, 1890, the other the 9th of November, 1890. The property insured was destroyed by fire 12th December, 1890. It was agreed, if appellee recovered, that the amount of loss should be $ 1635. Verdict and judgment for $ 1716, from which there was an appeal.

Appellant seeks to prevent recovery upon two grounds: (1) Because it claims that others were the owners of the property at the time policies were issued to assured; (2) the appellee agreed to keep with ten feet of gin stand a barrel full of water and two buckets, which he failed to do. We will dispose of these as they are presented.

1. In the application which appellee signed is this question: "Is any other party interested in the property?" Answer: "No." Upon the question of ownership, several witnesses for appellant testified that, the spring before the fire occurred, they had bought the property, had paid part of the purchase money, and gone into possession, and had the entire control and management of same since 1st of October, 1890. The appellee denied that he had sold the property to these parties; claimed that they were tenants upon his place, and working for him. It is sufficient to say, upon this contention, that we find no error in the refusal of the court to give the first and second requests for instructions, as asked by appellee, since the first and second charges of the court upon its own motion were sufficient; and the verdict of the jury on this point would be conclusive for appellee. In view of the conflict in the testimony, however, the court should have permitted the witness Randolph to testify. The appellee proposed to prove by him "that he was present at the time the trade was made, as detailed by the witnesses who claimed to have bought the property from appellee, and that he had heard appellee say, since the trade, that he had sold the property." This testimony was relevant, and it is impossible to tell how much weight the jury might have attached to it.

When objection was made to his competency on account of conviction for an infamous crime, the record of such conviction should have been produced by the objectors. It was in existence and accessible, and the only legal evidence of his infamy. 1 Greenleaf, Ev. sec. 375; Scott v. State, 49 Ark. 156, 4 S.W. 750, and authorities there cited.

2. The appellant requested the court to say to the jury "that if plaintiff failed to keep a barrel and two buckets of water within ten feet of the gin stand at the time same was burned, he cannot recover." In the application was also this question: "Will you agree, as a condition of this insurance, to keep in same room, within ten feet of gin stand, one barrel full of water and two buckets?" Answer: "Yes."

The following excerpts from the policies and the application will show that the application was made a part of policy No. 81741 for $ 1200, and that the stipulation, as set forth in the above question and answer, was an express promissory warranty.

From the application: "The subscriber requests insurance by the Southern Insurance Company of New Orleans, and agrees to and with the said company that the same is a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property to be insured; and said answers are considered the basis on which insurance is to be effected, and the same is understood as incorporated in, and forming a part and parcel of, the policy." Also: "Special reference being had to assured's answers (including diagram) on back hereof, made a warranty and a part hereof." From the policy: "If an application, survey, plan or description of property be referred to in this policy, it shall be a part of this contract, and a warranty by the insured." And on a red slip of paper attached to the policy, and containing a description of the property, is this: "Special reference being had to assured's application No. , which is made a warranty and a part hereof." The application is numbered .

The following clause in the policy shows the effect of a breach of this warranty. "This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein." Johnson v. Insurance Co. 83 Me. 182, 22 A 107; Cobb v. Covenant Mut. Ben. Ass'n, 153 Mass. 176, 26 N.E. 230. This court, in the case of Mechanics' Ins. Co. v. Thompson, 57 Ark. 279, 21 S.W. 468, by Battle, J., held that the failure of the assured to perform an agreement of this kind would bar recovery. In that case there was some effort to prove a performance, but it was not sufficient. Here it is confessed that there was no compliance whatever, and no attempt to comply. The appellee seeks to avoid the effect of non-compliance by saying "that the agent of the company told him that the application was mere matter of form, and did not amount to anything; that he was in a hurry, and did not stop to read it, nor did the insurance agent read it to him." He had an opportunity to read the application. There is no pretense of fraud or imposition being practiced upon him by the agent. He does not claim that the questions were not asked him, or that he did not answer them, or that his answers were not truly stated. The agent denies telling appellee that "it was mere matter of form, and did not amount to anything." But, even if he had, it would be a mere matter of opinion on the agent's part; and to say that appellee could be misled by such a statement would subject him to the impeachment of gross ignorance or carelessness, neither of which appears from this record. It would be an anomaly in the law to permit a party to avoid the effect of a written contract upon such a flimsy...