117 Ark. 71 | Ark. | 1915
(after stating the facts).
In the case of 'the St. Louis, I. M. & S. Ry. Co. v. Raines, 90 Ark. 482, and other cases cited therein, we held that the object of the act in question was to save a repetition of evidence and an unnecessary consumption of time and costs in actions depending upon the same or substantially the same evidence, or arising out of the same transaction.
It is evident that if the contention now made by the defendants should be sustained by the court that one of the principal objects of the statute would be defeated. If the defendants were each entitled to three peremptory challenges then it follows as a matter of course that the plaintiffs would be entitled to three peremptory challenges against each of the defendants. The result would be an unnecessary consumption of time in the formation of the jury. New panels would have to be summoned because it is obvious that the regular panels would be exhausted before the jury could be obtained if the plaintiffs and defendants were allowed three peremptory challenges each, as contended for by counsel for the defendants.
It may be true that in some cases for special reasons some of the defendants might want to challenge certain jurors which the other defendants might want retained, and vice versa; but such matters as these would be properly urged as reasons why the cases 'should not be eonsolidated, or as reasons why the court ¡abused its discretion in ¡consolidating the cases.
We are of the opinion that the act of May 11, 1905, contemplates that when actions are ¡consolidated under it, they shall proceed to trial as one action, and that the procedure shall ¡be governed by the rules .applicable to one action. It follows that if ¡the ¡case is to be treated as one action, the plaintiffs .and defendants are only entitled to three peremptory challenges each, under section 4536 of Kirby’s Digest.
In the ¡easeoibefore us the record does not ¡show .that the court abused its discretion in ¡consolidating the actions. The policies issued by the insurance companies were the standard forms of insurance policies and contained in all essential respects the same provisions. The same fire occasioned the loss under all of the policies and the defenses to be made by the defendants; were substantially the same. The companies- employed the’same attorneys .and the record does not .show that the -defendants were in .any way prejudiced by the consolidation of the causes. Their only claim was that each -of them had the right to exercise three peremptory challenges, and as we have already seen, we think the act of May 11, 1905, contemplates that the actions when consolidated, should proceed to trial as one action, .and be governed by the statutes relative -to the trial -of ¡a single action.
It will be seen that the contention of counsel for the defendants is that, as a matter of law, the plaintiffs are bound by their proofs of loss as to the amount of the loss suffered by them. It is generally held that proofs of loss will not estop a plaintiff, but that in a suit upon the policy he may give evidence of the actual ¡amount of 'his loss and recover accordingly. The reason is that proofs of loss are required for the purpose of furnishing the insurer with information upon which to determine the amount of his liability and to serve as a basis for the adjustment of the loss with the insured. It is merely an estimate of the party, and where a settlement is not made upon it, it is not ¡conclusive of the amount due by the insurance company to the insured, but the insured may recover in a suit upon the policy the amount established by the evidence as the true amount of his loss.
The fourth subdivision of section 3095 of Kirby’s Digest provides that a husband or wife may be .allowed to testify for the other in regard to .any business transacted by the one for the other in the capacity oif agent. The record shows that when the fire occurred, the plaintiff, Leah Friedman, constituted her husband her agent in all matters pertaining to the adjustment of the loss between her and the fire insurance companies. Therefore, under .the statute the husband was .a competent witness to testify as to all matters relating to the agency. It was clearly competent for Mm to state that he met the adjusters and went with them to the scene of the fire, .and made an examination of the building and of other matters pertaining to a settlement of the loss.
It is true that the record shows that the husband .also testified in regard to a steel girder running through the length of the building near its center which is alleged to have caused the damage to the front and rear walls of the building. We need not decide whether tMs was a matter pertaining to the agency or not, for no objection was made to the testimony of the witness in this regard. The objection made was when he took the stand as a witness, and was a general objection that he was incompetent to testify in the case. As we have already seen, he was competent to testify as to matters relating to his agency, and if he testified .as to matters not within the scope of his agency, the def endants should have then made a specific objection as to this testimony. Not having done so, under the settled rules of this court, they are not now in an attitude to complain.
Besides this, some of the witnesses for the plaintiffs testified that the fire occurred on the coldest night of the winter, and that the next morning the water which had been thrown upon the building in an effort to extinguish the fire had become frozen and that the ice thus formed tended to force the walls out of plumb.
Still another witness for the plaintiffs testified that the action of the fire itself on the building might have caused the walls -to crack and to become out of plumb. And in any event 'the defendants might have caused the examination to be made during the progress of the trial, and are not in ian attitude now to complain.
It follows that the judgment of the court in this respect will be reversed and the amount oif the attorney’s fee and the penalty will not be allowed as a part of the judgment.
The judgment as to the amount due to the plaintiffs under the policies as damages will be affirmed.