89 Ark. 111 | Ark. | 1909
(after stating the facts.) Four propositions of law are relied upon for a reversal of the judgment and a dismissal of the cause.
1. It is insisted that no proof of loss was filed with the company within thirty days after the fire as required by the terms and conditions of the policy.
Appellees admit this, but say that the proof of loss was waived by the company. The facts relied upon to constitute a waiver are as follows: J. H. Dannehower testified: “Plaintiff called on me the next day after the fire to look after the collection of the insurance. I requested Mr. Hale, the local agent, to take it up with the company, which he did right away. I had some correspondence with the company — two or three letters. I don’t think this was more than ten or fifteen days after Mr. Hale wrote to them. They kept saying and writing to Mr. Hale that they would send an adjuster to adjust the matter. Mr. Smith was here, and he said he was here for the purpose, but was waiting for the papers. He told me that he was going to Blytheville, and that probably by the time he got back the papers would be here. The papers referred to were papers from the insurance company. This was a short while after the fire. Smith is an insurance agent from headquarters. When Mr. Hale would receive a letter from the company, he would show it to me. I did not make out a regular proof of loss because they led me to believe all along that they were going to settle it; said just as soon as they had a chance they were going to send a man over and adjust the loss. They sent Mr. Miles, who went on the premises and made an investigation. He did not ask me for any proof of loss or make any mention of it; only asked me how much Nora Brown owed me, and I gave it to him. He is the man that came especially to look after the settlement of this insurance, and after we walked over the place I gave him the amounts' Nora owed me. ITe told me he would go to the bank and telephone J. B. Driver to come down and settle the matter up. Driver was the president of the company. He asked me the amount that Nora Brown owed me, and I told him, and 'he said that he would have to pay me, but they were not going to pay Nora Brown anything. I said, ‘Well, you needn’t pay me unless you pay t'he whole thing. I won’t take part of the money and not get it all.’ He said they were not going to pay the negroes anything; wouldn’t pay them anything if it wasn’t for me. He said they would have to pay me. That is just what he said, and that Mr. Driver would be down and settle with me as he said he would, but Mr. Driver never did come. During all this time they never even mentioned proof of loss to me. I received from the insurance company the following letter:
“ ‘Tittle Rock, Arkansas, June 3, 1907.
“ ‘Mr. J. H. Dannehower, Osceola, Ark.
“ ‘Dear Sir: Replying to your favor of the 29th ultimo in reference to the so-called claim under policy No. 2782, beg to advise that this company has the same under investigation.
“ ‘Yours very truly,
“ ‘American Insurance Company,
“ ‘E. Miles, Sec’y.’ ”
The conversation with Miles occurred more than thirty days after the fire. It is admitted in one of the letters of the company that Smith had authority to adjust fire losses.
“So far as objection might be made on the ground that the notice or proofs are not furnished within the time specified by the policy, any conduct on the part of the company or its authorized agents which has induced or necessitated delay in giving notice or furnishing proofs so that they can not reasonably be given or furnished within the required time will constitute a waiver of the delay.” 19 Cyc. 865.
In the case of German Insurance Co. v. Gibson, 53 Ark. 494, this court held: “Forfeitures are not favored in law; and any agreement, declaration or course of action on the part of an insurance company which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by conformity on his part, will estop the company from insisting upon the forfeiture.”
In the case of Burlington Insurance Co. v. Lowery, 61 Ark. 108, it held that proof of loss under a fire policy may be waived by parol, though the policy requires a waiver to be in writing.
In the present case the evidence shows that appellees at once caused the company to be notified of the loss and attempted to have it adjusted. The company entered into negotiations with them looking to that result, which were continued until long after the thirty days had elapsed. The company all the while treated the claim as pending for adjustment on its merits, and we think the evidence was sufficient for the jury to find that the proof of loss was waived.
2. Counsel for appellant contends that the policy is void because Nora Brown was not the sole and unconditional owner in fee simple of the property insured, as required by the terms of the policy. This contention is based upon the assumption that the record shows a sale of the lot on which the house in question stood in 1902 for the taxes of 1901. The only record evidence touching the tax sale is a copy of the list and notice of sale of lands delinquent. This does not show a sale. The taxes may have been paid before the day of sale. Even if there was a sale, it was void because the record shows that the county clerk’s certificate was made and recorded on the day of sale. Townsend v. Penrose, 84 Ark. 316, and cases cited; Hunt v. Gardner, 74 Ark. 583.
3. Counsel for appellant insist the policy was void because of the gross misrepresentations of the insured as to the value of the house. They rely upon the case of Capital Fire Ins. Co. v. King, 82 Ark. 400. In that case the court held that by the terms of the policy there was an express' warranty that the house cost a certain amount, which was not true, and for a breach of this warranty the policy was rendered void. In the present case there was no warranty of the cost of the building, and the question of false representations was submitted to the jury under proper instructions, and their verdict is binding upon us.
4. Counsel for appellant contends that the court erred in giving instruction No. 2 to the jury. It reads as follows: “In the event you find for the plaintiff, your verdict will be for the cash market value of the building at the time of the loss, not exceeding the face of the policy, together with six per cent, interest; and if you» find for- the full amount of the policy, you will also add to the principal and interest twelve per cent, of the principal as damages.”
The objection urged to this instruction is that the jurors were told that their verdict could not exceed the “cash market value of the building,” instead of the full amount of the policy. In that respect it was more favorable to appellant than it was entitled to under the law. Of that it cannot complain.
Sec. 4375 of Kirby’s Digest provides that in case of a total loss by fire in case of buildings the insured shall recover for the full amount stated in the policy.
Finding no prejudicial error in the record, the judgment is affirmed.