Yates v. Thomason

• Decision Date: 27 May 1907
• Citation: 102 S.W. 1112
• Parties: YATES v. THOMASON et al.
• Court: Arkansas Supreme Court

102 S.W. 1112

YATES v. THOMASON et al.

Supreme Court of Arkansas.

May 27, 1907.

Appeal from Circuit Court, Mississippi County; A. B. Shafer, Special Judge.

Action by G. W. Thomason, assignee, and others, against Frank B. Yates, receiver. Judgment for plaintiffs and defendant appeals. Reversed.

Danl. W. Jones and Robt. Martin, for appellant. W. J. Lamb, D. F. Taylor, and W. J. Driver, for appellees.

HILL, C. J.

This is an action on an insurance policy brought by G. W. Thomason, as assignee of V. V. Bertt, against the People's Fire Insurance Company. After judgment against the insurance company in the circuit court it appealed, and F. B. Yates as receiver has been substituted as appellant. Many questions were raised in the lower court and preserved in the motion for new trial; but all of them have been abandoned except four, which will be discussed seriatim.

1. It is argued that the evidence shows that the recovery should have been for less than the full face of the policy, owing to the three-fourths clause, which was a part of the policy. Appellant's calculation is based upon the assumption that the goods were purchased in May; but, as a matter of fact, the evidence shows that, while probably contracted for at that time, they were not turned over to Bertt until September, and the time for substracting the sales from the gross amount of the goods should run from September, instead of May. Calculated upon this basis, and it is the correct one, there were enough goods on hand to have allowed a full recovery on the face of the policy. In other words, the insured bore more than one-fourth of the risk, and that is what the three-fourths clause required.

2. It is contended that the verdict is contrary to the evidence, in that the denial of liability was not proved, and therefore the proof of loss was not waived, and it is admitted that the proof of loss was not furnished. The evidence is ample from Mr. Bertt and from his attorney, Mr. Driver, as to a denial of liability by the appellant, and, that acting upon such denial, Mr. Driver brought this suit; and it has long been settled by many decisions of this court that a denial of liability waives proof of loss.

3. The court gave this instruction: "The defendant may waive a compliance of the proof of loss clause of its policy either expressly or by its conduct. If the defendant denied its liability under the policy, you are instructed that such conduct would relieve the plaintiff of any liability to perform his agreement under this proof of loss clause, and would amount to a waiver thereof by defendant, although a contract of nonwaiver had been duly executed prior thereto." There was a nonwaiver agreement in this case, and it is contended that such agreement protected the officers of the company from evidence proving they waived any provisions of the policy. The nonwaiver agreement which was executed by the parties is as follows: "It is hereby mutually understood and agreed by and between V. V. Bertt, party of the first part, and the Security Fire Insurance Company of Little Rock, Arkansas, and other companies signing this agreement, parties of the second part, that any action taken by the said parties of the second part in investigating the cause or investigating the amount of loss and damage to the property of the party of the first part caused by fire alleged to have occurred on the second day of November, 1905, shall not waive or invalidate any of the conditions of the policies of the parties of the second part, and shall not waive or invalidate any rights whatever of either of the parties to this agreement. The intent of this agreement is to preserve the rights of all parties hereto, and provide for an investigation of the fire and the determination of the amount of loss or damage, without regard to the liability of the parties of the second part." This nonwaiver agreement shows on its face its one and only purpose, which is "to...