Western Assur. Co. v. White

• Decision Date: 12 July 1926
• Docket Number: (No. 128.)
• Citation: Western Assur. Co. v. White, 286 S.W. 804, 171 Ark. 733 (Ark. 1926)
• Parties: WESTERN ASSUR. CO. v. WHITE.
• Court: Arkansas Supreme Court

286 S.W. 804

WESTERN ASSUR. CO. v. WHITE.

(No. 128.)

Supreme Court of Arkansas.

July 12, 1926.

Rehearing Denied September 27, 1926.

Appeal from Circuit Court, White County; E. D. Robertson, Judge.

Action by F. O. White against the Western Assurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

McMillen & Scott, of Little Rock, for appellant.

Miller & Pearce and John D. De Bois, all of Searcy, for appellee.

SMITH, J.

The appellant insurance company issued to appellee individually a policy of insurance on a building owned by appellee and his wife as tenants by the entirety for the sum of $1,500. The policy contained a provision limiting the concurrent insurance on the building to $4,000. Additional insurance on the building was taken out by appellee, so that at the time of the fire which destroyed the building there was $5,500 insurance on it. The policy contained a clause which provided that it should be void if the total concurrent insurance exceeded $4,000. The policy also contained a provision that it should be void "if the interest of the insured be other than unconditional and sole ownership." The insurance company denied liability upon two grounds: First, because insurance in excess of the concurrent insurance allowed by the policy sued on had been taken out; second, because appellant was not the sole and unconditional owner of the building. There was a verdict and judgment for the owner, and the insurance company has appealed.

The validity of a clause in an insurance policy limiting the total concurrent insurance, and invalidating the policy if that amount is exceeded, has been frequently recognized by this court; indeed, it is recognized and enforced universally, but it has been held by this and all other courts that, while the clause is valid, it may be waived. That such a provision may be waived was declared by this court in the case of German-American Ins. Co. v. Harper, 75 Ark. 98, 86 S. W. 817, and that case has since been several times followed.

Without setting out the testimony showing knowledge of the excess of insurance, it may be said that the testimony warranted the jury in finding that the agent of the appellant company had such knowledge of this fact, and that its conduct was thereafter such as to reasonably imply a purpose not to insist upon a forfeiture of the policy on that account, and, this being true, the verdict of the jury finding that there was a waiver of this provision is conclusive of that fact. Ark. Mutual Fire Ins. Co. v. Claiborne, 82 Ark. 150, 100 S. W. 751.

Upon the second question, it may be said that the undisputed testimony shows that appellant and his wife were the owners of the insured property as tenants by the entirety, and there was no testimony charging the insurance company, or its agent, with knowledge of that fact, so that it cannot be contended — in fact, it is not insisted — that there was any waiver of the provision of the policy that it should be void "if the interest of the insured be other than unconditional and sole ownership." On the contrary, the insistence is that appellant, as a tenant by the entirety, was the sole and unconditional owner.

We do not agree with counsel in this insistence. If being a tenant by the entirety made appellant the sole and unconditional owner, then his wife, the other tenant by the entirety, would also be the sole and unconditional owner, and we would have the anomalous condition of two persons each being the sole and unconditional owner, for her interest is as great as his, and she has the same right to the use and possession of the property and the same right to share in the rents and profits thereof. In the recent case of Moore v. Denson, 167 Ark. 134, 268 S. W. 609, we had occasion to consider the nature of the respective rights of the holders of an estate of this kind. In that case a judgment had been recovered against the husband, and we held that his interest in the estate might be sold under execution, subject to the wife's right of survivorship.

This holding followed from the prior holding of this court in the case of Branch v. Polk, 61 Ark. 388, 33 S. W. 424, 30 L. R. A. 324, 54 Am. St. Rep. 266, where the court considered the effect on estates by the entirety of the provisions of our Constitution and statues which had enlarged the rights of married women. Mr. Justice Riddick, speaking for the court, said:

"In this state a married woman has full control of her separate property, and may convey and dispose of it as if she were a feme sole. Our Constitution and statute have excluded the marital rights of the husband therefrom during the life of the wife. Const. 1874, art. 9, § 7; Sandels & Hills' Digest, § 4945; Neelly v. Lancaster, 47 Ark. 175 [1 S. W. 66] 58 Am. Rep. 752; Roberts v. Wilcoxson, 36 Ark. 355. We think that the effect of these provisions was to give the wife control of all the property owned by her, including her interest in an estate by entirety as well as other real estate. To say that it did not apply to an estate by entirety would be to deprive her of a share in the rents and profits of such an estate during the life of her husband, and would establish an exception to the operation of the constitution and statute resting on no valid principle or reason: Hiles v. Fisher, 144 N. Y. 306 [39 N. E. 337, 30 L. R. A. 305] 43 Am. St. Rep. 766. On the other hand, to say that neither she nor her husband could convey any interest in such an estate, except by a joint deed, would tie up the estate, and prevent either of them from controlling or disposing of his or her interest without the consent of the other. It would also result in placing it beyond the reach of the creditors of...