Teutonia Insurance Company v. Johnson

• Decision Date: 05 December 1903
• Citation: 82 S.W. 840,72 Ark. 484
• Parties: TEUTONIA INSURANCE COMPANY v. JOHNSON
• Court: Arkansas Supreme Court

82 S.W. 840

72 Ark. 484

TEUTONIA INSURANCE COMPANY v. JOHNSON

Supreme Court of Arkansas

December 5, 1903

Appeal from Woodruff Chancery Court, EDWARD D. RORERTSON Chancellor.

Reversed.

Decree reversed.

Rose Hemingway & Rose and Campbell & Stevenson, for appellant.

The policy was forfeited for failure to give notice and make proofs of loss within sixty days, as required by its conditions. 13 Am. & Eng. Enc. Law (2d Ed.) 327, 328, 335; 64 Ark. 593; 2 May, Ins. § 463; 7 Am. & Eng. Enc. Law § 1043; 8 Wait's Act. & Def. 795; Wood, Fire Ins §§ 412, 437. The requirement of the policy as to the form and contents of the proofs of loss, as well as the time for their filing, must be complied with, unless waived. Wood, Ins. §§ 411, 412, 414; 75 Pa.St. 378; 13 Am. & Eng. Enc. Law (2d Ed.), 327, 328, 330, 333, 335; 96 Ia. 39, 224; 3 Bush, 333; 24 Mo.App. 145; 75 Wis. 198. There was no waiver of these requirements. 66 Pa.St. 17. The policy was entire and indivisible, and the apportionment of separate amounts to different items or classes of property does not make it divisible. 63 Ark. 187; 52 Ark. 257. A waiver must be specially pleaded. 4 Joyce, Ins. § 3683; Kerr, Ins. 771; 58 Kan. 108; 47 Kan. 1; 96 Ia. 39; 43 Ia. 590; 74 Ia. 11; 36 N.Y. 280; 40 Ia. 442; 60 Ia. 267; 14 N.Y. 792. The false swearing of insured as to the time of the fire avoided the policy. 28 Mich. 398; 17 N.Y. 391. Also, the false swearing as to his interest in the property avoided said policy. 63 Ark. 187; 8 Cush. 127; 7 Allen, 239; Wood, Fire Ins. §§ 155, 158, 159; 10 Cush. 444. Since the insurance was indivisible, the entire policy is void. 63 Ark. 187; 52 Ark. 257; 111 Ind. 90; 123 Ind. 172.

J. F. Summers, for appellee R. L. Johnson.

Any insufficiency of notice was waived. 67 Ark. 588; 30 Am. Dec. 99; 67 Ark. 588. It not being so expressly stipulated, the failure to furnish proofs of loss in sixty days did not work a forfeiture of the policy. 18 L. R. A. 85; 53 L. R. A. 70; 59 S.W. 863; 87 N.W. 13; 13 S.W. 882.

Campbell & Stevenson, and Rose, Hemingway & Rose, for appellant in reply.

By the terms of the contract of the parties, the furnishing of proofs of loss, in the prescribed form and time, was an imperative condition to liability upon the policy. 64 Ark. 593; 133 N.Y. 356; s. c. 31; N. E. 31; 49 P. 711, 713; 28 P. 469; 53 N.W. 463; 46 A. 1010; 21 S.W. 207; 98 Mass. 420, 424; 12 Allen, 535; 26 Oh. St. 348; 57 N.Y. 500; 64 N.Y. 162; 59 N.E. 818; 53 Mo.App. 98; 62 Mo.App. 620, 628; 33 Mo.App. 604, 672; 56 Mo.App. 343; 90 Mich. 302, 306; 36 Minn. 433; 101 Ill. 621; 57 N.W. 455.

J. F. Summers, for appellees, on motion for rehearing.

The policy is valid because the insurance company is estopped to deny that proofs of loss were filed within sixty days. 30 Am. Dec. 96, 102; 67 Ark. 587; 54 Ark. 494. Under a policy such as the one in this case, the failure to furnish proofs of loss within sixty days does not forfeit the policy, if they are in fact furnished at any time within the time for institution of suit, as provided in the policy. 52 L. R. A. 70, 71; 18 L. R. A. 85; 59 S.W. 863; 29 S.W. 313; 48 N.W. 296; 51 N.W. 524; 90 Mich. 302; 51 N.W. 524. Unless the furnishing of proofs within sixty days be expressly made a cause of forfeiture, the requirement will not be so construed. See cases ante.

Rose, Hemingway & Rose, and Campbell & Stevenson, for appellant in reply.

There is no estoppel as contended by appellee; nor was there any waiver of the time limit of sixty days. The cases cited by appellee on waiver and estoppel reviewed and distinguished. Even had the acceptance of the defective and partial proofs of loss been a waiver of their defects, such fact could not cure the subsequent forfeitures for failure to file complete proofs within sixty days and for misrepresentation. 67 Ark. 588. By attempting to file complete proofs later, appellee abandoned the first and defective attempt. There is no waiver of the forfeiture for misrepresentation as to the date of the fire. 28 Am. & Eng. Enc. Law, 53. The appellee is concluded by reason of the failure to furnish proofs of loss within sixty days. The cases cited by appellee on this point reviewed, distinguished and criticised. In said cases there is no provision in the policy making the furnishing of proofs of loss within a given time a condition precedent to suit, as is the case in this policy. Cf. 111 Ga. 622, s. c. 52 L. R. A. 70; 84 Mich. 646; 59 S.W. 863; 29 S.W. 313; 48 N.W. 296, 297; 51 S.W. 524. The furnishing of proofs of loss within sixty days is in this case a condition precedent to recovery, and failure to comply therewith is as much a defense to the policy as if it were made an express ground of forfeiture. 64 Ark. 590, 593. See also 90 Mich. 302.

OPINION

BUNN, C. J.

The appellee, R. L. Johnson, being indebted to his co-appellee, the Riverside Lumber Company, in the sum of $ 470, evidenced by his promissory note of that date, bearing interest at the rate of 10 per centum per annum, to secure the payment of the same, executed and delivered to it his mortgage on his residence, of even date with said note, and as alleged agreed to keep said premises insured for the benefit of said Riverside Lumber Company according as its interests might appear, but, failing for some reason to take out insurance at the time, the lumber company did so for its own protection. This insurance expired on the 16th day of April, 1899, and thereupon the lumber company requested Johnson to take out insurance on the mortgaged property for its protection as he had in the beginning agreed to do. Insurance was accordingly effected by Johnson in the month of August, 1899, but he failed to have the lumber company named as a beneficiary therein, according to the agreement. This is the insurance policy involved in this litigation. The amount of insurance named in the policy is $ 500, $ 100 of which is on the household goods, and $ 400 on the dwelling house. The house and household goods were totally destroyed by fire in the afternoon of the 31st of January, 1900, and on the 19th of February, 1900, the Riverside Lumber Company instituted this suit in the Woodruff chancery court.

The complaint contained a petition for restraining order, restraining the said Johnson from collecting and the said insurance company from paying over to him the insurance on said property, and the same was granted, and a restraining order issued. Prayer of the bill was for judgment against Johnson on his note, and direction to pay the insurance direct to said lumber company as its interest might appear, and for other relief. The defendants, Johnson and the Teutonia Insurance Company, answered; the insurance company on the 16th day of April, 1900, and Johnson on the 9th day of April, 1900, the latter asking damages for the issuance of the restraining order in the sum of $ 100, and praying that the cross bill of the insurance company be dismissed for want of equity, and for judgment against the insurance company for the amount of the policy.

The cross complaint of the insurance company sets up, among other things, that defendant Johnson failed to notify it of the time and circumstances of the fire in writing, as required by the conditions of the policy; that he, in his alleged proof of loss on the building made out on the 5th of April, 1900, falsely swore that the fire occurred on the 7th of February, 1900, when, in fact, it occurred on the 31st of January, 1900, as he well knew; that, had said false statement as to the date of the fire been true, his said proof of loss would have been made out and presented in time, but, being false, and the true date being the 31st of January, 1900, as before stated, his said proof was not made out within the sixty days after the fire, as provided on the policy, and that such false swearing and delay in making the proof of loss, as well as failure to give motive of the occurrence of the fire in writing, with inventory, constituted breaches of the conditions of the policy, such as defeat the right of recovery thereon.

The answer of Johnson to the cross complain of the insurance company admits the incorrectness of the date as named in his proof of loss, and that it should have been the 31st January 1900, as claimed by the insurance company, but says that the error was a mistake on his part, and that it was not intentionally committed, and that it was immaterial in this, that he filed his proof of loss within the sixty days of the true date of the fire, to-wit: on the 13th day of March, 1900; and further he says that he was not required by the conditions of the policy to give notice of the occurrence of the fire in writing, and that he gave all the notice...