ARK.] FIREMEN 'S . INSURANCE CO. v. Dozmi. 737 FIREMEN 'S INSURANCE COMPANY V. DOZIER. 474269 Opinion delive'red'May 11, 1936. 1 ACCORD AND , .sansFACTION. Where appellee's . house which was in7 sured in, aPpellant 'company was damaged, and the , damage iVas esiiniated and, check ' g erit to insuied, hut for a less arnotne thari 'the COe t ' ' of repairs, and the local agent . 'cif 'the company, bY tell-the:ineured thEit he would see that the case was reopened;:ilv duced him; to indorse , the,check and: cash it, there wae no "accord and satisfaction" ., pr eclu . ding the insured from recovering an 'additiOnal suM. --Appeal froth Scott 'Circuit Cdurt; J. Sant Wood, Judge; affirmed.
738 FIREMEN 'S INSURANCE CO. v. DOZIEtt. [192 -Cravens,-Cravens,& Friedman,, for appellant: • 'W.'A. Bdte§ . and Donald koe; for appellee.' .. ■:/fiTii; 3: AiiPellant,inSiitance coinpany issue ap, Pollee Dozier' a policy' of instiranCe. in the 'Surd Of 1,000, which covered storm damage . te :the' inSiired.iii4th-ty. The roOf'Of the . hiSured 'building -Was blOwn • Off by .a stOrin and the Wallpaper in'One of the . rOOMS Was rained. j The policy,was- issued and ,deliyered by .M..,C...Bird, the local agent Of the insurance company, to Dozier, who reported_ the ,: damage, . to Bird. The , rain. which , followed the ,. storin was, still . . falling .when .. Bird, and Dozier ;went to the insured house. Bird . gave ..orders.lor,the,imme çiiate ° repair , of the roof . and these repairs were! made at a . cost Of $13,6.37. .An insurance. , adjuster Inspected .the roof and ., inquired. , its; age,. which .he,estimated.,wo0.1 have :lasted , for twonty years. .H . e, , was. too t4 9 ; . 1,-9.9f. was eleven , yoaxs ., oid, and hp calcnlated,,its . valuo a 9/26 of its replaceniont : cost, .pr , $61.37„: , : He prepared a.. report or, proof of loss , hased•npon theSe: findings , which. D,ozier signed and acknowledged before a , notary: public. •ozier did not.read this ;paper' which he denominates the auditor''g rePOtt.' Birk the-1664' agent, had ,tindertaken,to repair'the dkmages 'and' he''' WaS' nOt. interested 'in , the cost thereof. He was not then 'exjaeetirig tO' be 'paid anY money. A voucher was issued by the insurance company for $61.37, payable to ; Dozier's .order, wldch . was.mailed to Bird, the local agent, whO *was also the cashier of the. local bank. This draft was in 'form a voucher which recited that it was in full payment . and,.final.settlement of any and all olaiini 'for' damages resulting irom or relating to the -.storni. • When the draft . 'Waa • PreSented to Dozier; he declined to . eash it or . tO accept it'When:he saw the .aniount „for . :which. 41. ..was ,drawn. , . ; •The, draft.. was held .at the bank . for about ninety' days-before- :it.•was finally . indorsed" . by : Dozier and , deposited for ',C011ection for his. account. 'After being indotSed , and . depOSited, the draft was paid in due course, and it IS n6w-ipleaded as an2accord .and : satisfaCtion Of the *claim •fOr. daMages for the recovery of which this suit was brought. • •
ARK:] FIREMEN)S iNSURANdE CO: v. : DOZIER. 739 The! law; Of: this. 'subject has been; frequently; arid recently , declared:. A. leading' , case; on the 'subject i i which has been . often quoted . and apprOved, , is . . that of . Barhav V. B an:k • of 1Jelight,..94 . Ark. 158; , 126 394, wher'e it Was held that if a , check; or 'draft is; given in .satisfaCtion of ' a' . disputed .ctaiin;•and: recites .. on ;its face . that • paYment in' full,. its: acceptance • iconstitutes air accord and satiSfaction 'althoUgh the. Creditor; protests at the ;time that it is notall thatris . ,due ;The. creditor's,' obtion is to :accept; the . chea. !or ;to rejeCt it. : He cannot, 'accept it a g . a 'part paYment to be. credited on :the :demand,- .when it was-, tendered as 'hill payment and tsatisf action 'Of , the-demand.- • ; • .;;;..; : • .. ; ;.. Dozier Tecovered jiidgment . for ; a; less amount than the suin sued 'for,: but. he ;did . ;recover jiidg . ment for darn-ages in ; excess of the , amount; of the-draft: ; Was this re.- coVery ; ! ;barred, . by . cashing ; the !, draft: . , cOntainiUg the recitals'Set .; mit. above l Ordinarily . •.it- would, but we think it was' not ; tinder the factS'of this. cage-hereinafter . i..„; .; , t- A.s has been said, D i o e z r , was not expecting , a ,pay, ment in money of his damages. Bird had undertaken to repair the damages and . had assumed a personal Obligation for the material and labor used in the repair of the roof which he personally ,paid.It , was- with Bird, as cashier of the bank, 'that' Dozier' cletiosited the draft for collection. Before the: draft was finally indorsed and deposited , there was considerable .correspondence about it, inditeed bY DoZie . eS iefuSat fo ' receive it. _ The. State. general agent; fot the ;insurance company audits' chief 'adjuster for -this,.State ,endeavored.:without si.i. cc . eSS to. induCe Dozier to:. aceept the draft...The HUghes IngUrance AgencY attempted alSO'fO' gettle the inatter.and employed M H Bird to .assist M: , .H., Bird „was the notary. who . took Dozier's. acknowledgment to . the .proof ofloss.; 'He i.s ..a -brother of ;;M: Birk the local agent, 'whO iSsned the: poliey and Wa g, present . at 'the conference hei -Ween 1),Dier .and the hisurer's S i ta, -.t6 agent -and its chief adjuster and heard the State agent tell DoZier to consult the Hughes Insurance Agency . abont Settling the difference about the damages in excess of • the: draft.. ;
740' [192 Dozier 'testified, that he was induced to -indorse the draft by the statement of M. C. Bird, who had written the policy and who had the draft in his possession for delivery, that :he would have the case reopened; ,and would see that Dozier got . more money: Bird did not deny making this §tatement. Indeed, the .effect : iof his testimony was to corroborate it, and. it cannot, therefore, be said as a matter of laW that the indOrsement of the check was: an accord' and Satisfaction:, Bird waS the in,- surer's agent and he knew when Dozier. .accepted and indorsed the draft that he was doing so, in part and not in . full payment . of the disputed demanil At the time this controlling transaction took place, Bird was in effect acting as an adjuster for the insurer and it cannot therefore be said as a matter : of law that the recitals in the draft; written some months before, are conclusive that the check was tendered as a settlement in full which could not otherwise .be accepted. The Home, Insurance Co., 'of Neiv York v. Hall, mite p. 283;.91.S. W. (2d) 609. There appears to be no error, and the judginefit must be affirmed. It, is so ordered.
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.