ARK. ] GLENS FALLS INS. CO . V. JENKINS: 1015 GLENS FALLS IN§TYRANdE COMPANY V. JENKIN§. Opinion delivered December 7, 1925.. .. INSURANCE—PROOF OF LOSS—WAIVER OF OBJ,ECTION.—Where written proof, of loss under a ,fire insurance policy waS siihmitted tivo • days • after a fire -On . a. Printed 'blank •and coriiPlYing With the insurer's • requireMents, except that it included * Profierli not insured, and failed to itemize the property. destroyed; failure 'of the,insurer's.adjuster to object to,such proofs, until; after : the .time for . filing had expired . constituted a waiver of the deiense that the proofs Were not filed in time. INSURANCE 7 —COND±ON AS 'TO OWNERSHIP.—A . condition in an insuranee poliey regarding the 'unconditional ownership of the inSured property : applies 'only to :property coVered by the pOlicy, and. testimony aS to liens on propekty. not insUked was irrelevant. 3.- APPEAL: 'AND , ERROR—CONCLUSIVENESS OF vERDIET.—K verdict on conflicting evidence'is Conclusive. . 4. EVIDENCE—STATEMENT OF CONSPIRATOR.—In an action, on , a - fire insurance policy, where the issue: , was • whether , plaintiff.: and another consPired to burn 'the building, testimony of a Witneis that she saw .. plaintift . hand the alleged conspirator: 'something which looked like- paper, and that the conspirator later stated ' that "if he cauld -get hii deal pulled . off he would have monay to throw to the ;birds" was incompetent .as not connecting defendant or stating any. . fact in ,a transaction between plaintiff, and, the conspirator. • EVID ENCE—COMPETENGt.--Iii an action' on a .fiie insurance p•olic'y, where the issue 'was 'whether plaintiff 'and another Conspired ' to 'burn and •did ! blirri the inSured building, proof that a -third party, wild was financially- unable to do so, did Put up a: cash bail for, .such 'conspirator, .was incompetent, where , there was np testimony tending to show that plaintiff furnished the money. 6. IN SURANCE—STIPULATION AR TO FALSE REPRESENTATI0NS.—Stip11- . lation in a fire insurance policy against false swearing and false :repreientationS relate only 'to the insured property, 'and not to property not covered by the poliCy; • ' • : • 1 . • TRIAL—TIME OF RAISINd QEESTIUN. : —In a suit on a .fire poliCy; where ' the clause limiting the recovery of 'plaintiff tO three-• :. fourths of the Value was not pleaded by the defendant, and it • applied,only to his personal property, and the description of , the - insured . property ; in the policy did not show . whether the prop-. ertY Waa chattels_ or fixtures, the court properly refused to • permit the question Of the three-fourths clauSe to be raised- fOr the' list time after the close Of 'the .eNiidence:-
1016 GLENS FALLS INS. CO . V. JENKINS. [169 Appeal from Little River Circuit Court; B. E. Isbell, Judge ; affirmed. Webber & Webber, fo'r appellant. Shaver, Shaver & Williams and Moore, Walker & Moore, for appellee. . MCCULLOCH, C. J. .The plaintiffs, C. N. Jenkins and J: W. White, operated a- motion picture theatre in the city of Helena, and owned certain property in connection With the building and businesS. • They ' carried fire inSnrance with several comPanies; and; among . others, the defendant, Glens Falls Insurance •Company, in, the sum of, $3,500 on Abe property described in . the policy ilows: "On improvements and betterments to the building described herein, the insnred part being the ground floor, occupied by .a first-class moving picture •theatre, known as the Best Theatre. These improvements and betterinents consist principally Of floors, ceiling, ,side lA r all, balconies, stairs, (hors, windows, partitionS, lattice work, ticket office, and theatre front, and. all other, improvements and betterments to the building which were niade and paid for by the assUred, all while contained in the three:Story, coMposition roof, brick building Situated 512 east Side of • CherrY Street, block . 18; -page r 14, ' San-born's,rnap of the city of Helena, Arkansas." , . The policy contained what is . known . as • a "three-• fourths value clause" reading as follows: ,"Applicable to personal property only; it -is understood and agreed to be a condition . of this insuranCe that in the event of loss or damage by fire to the property insured under this policy this company shall not ' ibe liable for an amonnt greater than three-fourths of the actual cash value of each item of property insured -by this policy (not exceeding the amount insured on each item) at the time immediately preceding such loss or-damage." - The policy also contained the customary clause, as a condi-" tion of liability, That proof of loss should be Made within .sixty , days after data of the fire. The property was destroyed by fire, and, upon refusal by , the defendant to pay, plaintiffs instituted this action on the policy.
ARK. GLENS FALLS INS. CO. V. JEN-KINS. . ' : 1017 •• : Defendant filed an answer denyingi liability on . several grounds, .namely, that' proof of loss had not , been-made within the• time prescribed in .the policy ;:thatthere. was a .breach of. the term§ 'of the policy .by . . plaintiff$ in: that their interest in the property' was -not. sole and'un, conditional; that there was a breach on . account . of in-cumbrance on . the 'insured property ;• and also that there was no liability by reason of the fact alleged that plaintiffs wilfully caused the property to be burned for the. purpose of collecting the insurance. - The- trial before a 'jury resulted in a verdict in favor of plaintiffs for the recovery of the sum of $2,100, and the defendant has prosecuted' an, appeal to : this ,court. Within tWo days after': the - fire, the plaintiffs sent to • the company what purported to be proof of foss: in.• accordance,with the terms-of the pOlicy. • ,The proof. waS made out on . a printed 'blank purporting to be a proof -of loss. It contained a . long list Of articles .destroyed the building which , were :not covered by the polidy,: and the only description .of:property insured was inader one, item, as follows : "Loss :to walls, ceilings;, fans and fixtures not mentioned above; $2,311.50.' ? - The proof was received by 'defendant's authorized adjuster; who made no _response or objection until after the expiration of the 'sixty days for furnishing proof of loss, when 'he wrote to appellees and informed them-that the proof was-,un satisfactory, and, defendant, then denied liability on the ground' that proof- had not .been made during the time provided . in the policy. . Counsel for:defendant _recognize in their argument • the force of the decisions of: this court, as well'. a§- other courts, that where an insured furnishes to the insurer within the time stipulated-by the polity What purports to be a proof of loss, and which is 'evidently intended to-be a compliance with the policy-, it is the duty of the insurer to seasonably make objections thereto,. if any found, and that. a failure to do so will constitute a•waiver; Hartford Fire Ins..Co. v. Enoch, 79 Ark.- 475 ; A4nerican Ins..Co. Haynie, v. 91 Ark. .43 ; Thisiness .Men'-$ Accident. Associa-
1018 GLENS FALLS INS. CO . V. JENKINS. : [169 tion v.Cowden131 Ark. 419. :But it is contended that the ‘ instrument of writing delivered to defendant was, not :inade in-good faith as a proof of , loss,, and did: not purport to be a compliance with the policy; so .as to challenge. the attention of the adjuster and :call for , bbjed-tions , to::discrepancies. We cannot agree With this tcon-, tention, for the alleged proof Was made out on a printedi form which expressly purported on its face to be a proof of:loss :under the designated policy, and it coMplied with all the requirements except as to•itemizing the property destroyed: 'The attention of the adjuster was necessarily called , to the fact that the insured was attempting 'to bom-ply. :with : the policy, and, if the' same wa g unsatisfactory and incomPlete, it' was the duty of the adjuster AO call attention of .the insured' te that . fact and:' to specify' the defeets. , .'It *as too late to do that after' the time for preparing the proof had ex . Pired, unless an extension of time -was given for that .PurpoSe. -1 It is:also contended that evidence offered by defend: ant wOuld have shown that there was . a:breach- of , the teiMs , of,,the policY by ieason l of the fact that plaintiffs were mot the iincOilditiorial owner's- of the insured property; but that, on the contrary, the property was covered by a, chattel-mortgage. The offered evidence did not tend-to:show' that the property covered by *this policY was incumbered by ally Mortgage or . lien; but - that other property in' the blinding owned by plaintiffs: was so * in-cunibered. -The cOndition in the policy in regard to unconditional ownership and against liens applied only to property coVered by the policy, hence-there was o error in:excluding testimony in regard to' ofher property: not. covered. : The principal defenSe offered in the trial of the Case was that J:. W. White, one of the , plaintiffs, 'hired a man named H. L. Keener to burn the building, so that the insurance could be collected, and that Keener set fire to the building during the night time; pursuant-to his ao-reement with White: , The defendant introduced tes= timony tending very strongly to establish those facts:
ARK.] GLENS FALLS INS. CO . V. JENKINS .. 1019: • It is : undisputed that Keener set fife to the ;bUilding,, and he , was c introduced as , a witneSs •by ther.defendarit i and testified that White ' hifed 'hian :. to burn the building. Keener's narrative on the witness stand was that he was living . in Texarkana with a man named Petty , ancl, had known White for , Several years ; that White came : to see him at- the tent where he' and the Petty's were Jiving and proposed to'hire him to -burn the theatre building :in. Helena.. He stated: that when White came -to see r. him he got in a closed . antomobile With White, and they drove. around two er three-horirs, and 'then caMe back to 'the, Petty tent, and that' he got • out. there in the :presence: of Petty and his wife. He -testified also. that •Petty's, stepson, Willie Satterfield, was present . when he.-and White made the trade : to burn the theatre; and that While first gave hima, ' dollar tO'buy a ticket to New Bosteri,i and that later he Met White . in 'New' * Bo:sten and , got some more money from him, about -thirty dollar-S, to 'use paying the exPerise of the -trip to Ilelena..7 . 11e testified that he burned:the building-as directed an& Was arrested and afterwards Pleaded 'guiltY-; that,' while: he was ifin jail in Helena with a man-imme'd Morris, who was rlet out on bond, he told -Morris to get , iri touch with White and tell White to'Inake his bond for him, : and that in-about two months there . was a deposit of cash in hlieu of borid. ' The . 'sheriff testified that, : after Morris got out of jail, he cameback and put up a deposit of $1 . ,000. for Keener's bond. Petty 'and' Wife and Satterfield- were each introduced as . witnesses by defendarit;' and- they corroborated Keener's statement. They testified that they saw Keener and White sitting in the car together in close conversation and saw White hand Money -to Keener: — - White testified as a witness, and denied the whole story about his ! hiring Keener to burn the theatre, and stated that he was not ao4uainted 'with Keener, and had never seen him until he : met him in Helena at : the time of this investigation. He alSO 'denied that he had made bond :for Keener or furnished the money which Morris
1020 GLENS FALLS INS. CO . v. JENKINS. [169 put up in lieu of bond. Other witnesses introduced by plaintiffs tended to establish contradictory statements on the part of Petty and Satterfield. • The issue concerning the destruction of the property by plaintiffs as .alleged in the answer was submitted to the jury on proper instructions, and there was evidence sufficient to sustain the verdict. We must treat the issue therefore as being settled in favor of plaintiffs. Mrs. Petty, when introduced as a witness by defendant, testified• that she had known Keener for several years, that he lived with her and her husband in a tent in the outskirts of Texarkana, and that she saw, Keener and White together on the occasion described by Keener, which was late in the evening on a certain day just before the theatre in Helena was burned; .that she Saw White hand Keener something which "looked like ,paper," but she could not tell precisely what is was; that White left there,..and Keener came into the tent for supper. •The defendant proposed to prove by her that after supper Keener said. that he was going away, .and that "if he could get his deal pulled off he would ha y e money to throw to the birds.." This testimony was excluded, dnd defendant saved exceptions, and urges the 'ruling now as grounds for reversal. , We do not think that the statement, in the form it . was made . by the witness, was competent. Conceding that the declaration of Keener as a co-conspirator with White was competent evidence against both of the plaintiffs, this declaration does not connect White with it or purport to state any fact in the transaction 'between White and Keener. It was merely a declaration of Keener's that "if he could get his deal, pulled off, he would have money to throw to the birds." Later, when witness Satterfield was put on the stand and testified substantially to the same facts with reference to what transpired on the occasion mentioned between Keener and White, he was asked to state what declaration or statement Keener made as to what occurred between him and White, and the witness replied that Keener, said on his return from the machine -where
ARK . .] GLENS FALLS IN : S. CO. , V. JENKINS. 1021 White, and Neener were sitting,. that f.'he, had. made; 4,, deal with, White and when he carried out the deal hel would have money to throw to tire birds, or; words . tp that: effect. '? The court admitted this statement ,for, ,the vious reason. that it was a declaration by Keener, as to what had occurred between him and White— Tt is altogether different from the ;declaration , sought to ..be: proved. by .1\&s. Petty. We think .there ,was no ,error. committed Iby the court in excluding Mrs. Petty's testi, mony on this subject. , . . . Again, it ;is insisted that the court erred rcfusing to allow 'defendant to z prove -by the‘ sheriff. of Phillips County,and another witness resid,ing at.lielena, what the financial condition of Morris was, -as . tendingito establishing the fact that he did not put up the $1,000, and some one else must have furnished it. This testimony had no tendency to establish the fact that White furnished the money to Morris ; in fact, there was no competent testimony at all introduced tending to show that White furnished the meney. The jury would have had no right to infer, from the fact that Morris' financial condition did not admit of -his putting up the money.himself; that White : had furnished the:-money: There- Was no error'therefOre in excluding thiS testimenf' There is a further contention that the ethirt: erred in excluding teStiinony 'with respeCt t tO the,..ValUerof,.other. property- containedhin the proof of loss. The- contention is- that this- constituted . false pretenses, iwhich,,-under the terms Of the policy, constituted a treachd abOlved the insurer from liability. The offered to : Ain-lay' related entirely to property. not . inoluded in.the policy: The stipulation in the policy against false..swearing land false pretenses relates to the:insured property, 'and not to any other, hence any repreSentation or 8tatbment as to the value of the other property was immaterial. : Finally, it is insisted:that the court erred in refl.'s. ing to give instruction -No. 10, requested by: the defendant, limiting the recovery of the plaintiffs to threel fourths of the value. ThiS is the . first-time that:the ques,
tion concerning the three-fourths value Clause has arisen in the proceedings. There was no reference to this clause in the answer, and, since it Was not Pleaded hi the-ansWer,. it was too late to:raise the question in'the court's Charge to the . jury. This . clause of the policy applied only to personal' property*. The • description in the policy of the insured PrOperty did not show on its fade' Whether the propertrwas of the character of chattels or fiictureS, so in' order to raise that question for the apPlication of the three-fourths value clause . it was necessary tb s plead it. The court was correct, therefore, in not permitting the quesiiCai tO be . raiSed'fdr the first time after the introduction of the evidence haa been closed, and the' instructions to the jUry being considered. Judgment *affir , m • ed.. ,
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.