Yates v. Thomason

• Decision Date: 27 May 1907
• Citation: 102 S.W. 1112,83 Ark. 126
• Parties: YATES v. THOMASON
• Court: Arkansas Supreme Court

102 S.W. 1112

83 Ark. 126

YATES v. THOMASON

Supreme Court of Arkansas

May 27, 1907

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

Judgment reversed and cause remanded.

Dan W Jones and Robert Martin, for appellant.

1. The verdict is contrary to the evidence and should be reversed for failing to comply with the "Proof of Loss" clause. No proof of waiver is shown.

2. It was error to modify the third request of appellant. 65 Ark 240-249; 64 Id. 590-596; 35 Md. 101; 64 Ark. 596.

3. It was also error to refuse to instruct, as asked in appellant's fifth request, as to violation of the iron-safe clause. 61 Ark. 207.

W. J. Lamb, D. F. Taylor and W. J. Driver, for appellee.

1. The verdict is amply sustained by the evidence, and there was no error in the court's charge.

2. The proof of loss was waived in express terms and by the conduct of appellant. 53 Ark. 494; 62 Id. 348; 74 Id. 72; 77 Id. 27; 77 Id. 41; 82 Ark. 226. The signing of a nonwaiver agreement does not preclude an oral waiver of proof of loss. 82 Ark. 226; 60 Ark. 532; 61 Id. 108; 62 Id. 348.

3. There was a substantial compliance with the iron-safe clause. 38 F. 19; 65 Ark. 386; 74 Id. 72.

4. Attorney's fees under statutes are allowed. 110 Am. St. 118; 97 Id. 624; 185 U.S. 308.

OPINION

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 subtracting the sales from the gross amount of the goods should run from September instead of May. Calculated upon this basis, and it is a 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 non-waiver 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 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." But, when such liability and the course of the company has been determined, then the nonwaiver agreement has served its purpose, and its force is spent. This is peculiarly applicable to the facts here. The parties negotiated for a settlement, went into an examination of the books, and discussed freely and fully under the protection of the nonwaiver agreement the rights of each party, and finally the manager of the company reached the conclusion that the company was not liable, and notified the attorney for the assured that they were not liable, and the attorney, as h...