American Insurance Company v. Mordic

Hart, J., (after stating tlie facts): It is'sough! to> reverse the judgment on tlie ground that J. A. Mordic made a false answer to the question as to whether or not there was a mortgage on the property which was insured. The application shows and the agent of the company testified that Mordic answered this question “No.” On the other hand, Mordic testified that he told the agent that there was a mortgage on the property for $7,250,- and that-he did not know that the agent had written down a false answer to the question. In the case of Fidelity Phenix Fire Ins. Co. v. Roth, 164 Ark. 608, it was held that, where an insurance company’s agent knew of mortgages on rice at the time of the issuance of a fire insurance policy thereon, a provision in the policy avoiding it if tlie insured property was incumbered was waived. The issue as to the truth or falsity of the answer of the insured to the- question as to whether or not there was a mortgage on the property at the time he made the application for insurance was submitted to the jury under the principles of law announced in the case cited above. The jury Laving found this issue in favor of the plaintiff, its finding is conclusive on appeal. The next assignment of error is that the court erred in allowing one of the attorneys for the plaintiff, in the course of his argument, to use the following language: “This man McDonald, they say he isn’t here and couldn’t get here. I expect he is down in Alabama trying to defeat some othet insurance policy.” The deposition of J. Y. McDonald had been read to the jury. Objection was made to the argument of the attorney for the plaintiff, and the court stated to the jury that the argument was not competent. The statement of .the attorney for the plaintiff was of a matter of fact which was not in the record,' and, as the'court told the jury, was an improper argument. "We think, however,. that any prejudice that might have resulted to the defendant was cured by the admonition of the conrt. The jnry mnst be credited with common-sense, and it cannot be thought, when the attending circumstances and the nature and amount involved in the'case are considered, that any prejudice resulted from the statement of the attorney which was not cured by the court telling the jury that it was incompetent. Central Coal & Coke Co. v. Orwig, 150 Ark. 635, and Arkansas Short Leaf Lbr. Co. v. Wilkerson, 154 Ark. 455. No other assignment of error is argued for a reversal of the judgment, and it will therefore be affirmed.