Teutonia Insurance v. Johnson

Bunn, C. J. The appellee, R. L. Johnson, being indebted to his co-appellee, the Riverside Lumber Company, in the sum of $470, evidenced by his promissory note of that date, bearing interest at the rate of 10 per centum per annum, to secure the payment of the same, executed and delivered to it his mortgage on his residence, of even date with said note, and as alleged agreed to keep said premises insured for the benefit of said Riverside Lumber Company accordingly as its interests might appear, but, failing for some reason to take out insurance at the time, the lumber company did so for its own protection. This insurance expired on the 16th day of April, 1899, and thereupon the lumber company requested Johnson to take out insurance on the mortgaged property for its protection as he had'in the beginning agreed to do. Insurance was accordingly effected by Johnson in the month of August, 1899, but he failed to have the lumber company named as a beneficiary therein, according to the agreement. This is the insurance policy involved in this litigation. The amount of insurance named in the policy is $500, $100 of which is on the household goods, and $400 on the dwelling house. The house and household goods were totally destroyed by fire in the afternoon of the 31st of January, 1900, and on the 19th of February, 1900, the Riverside Lumber Company instituted this suit in the Woodruff chancery court. The complaint contained a petition for restraining order, restraining the said Johnson from collecting and the said insurance company from paying over to him the insurance on said property, and the same was granted, and a restraining order issued. Prayer 'of the bill was for judgment against Johnson on his note, and direction to pay the insurance direct to said lumber company as its interest might appear, and for other relief. The defendants, Johnson and the Teutonia Insurance Company, answered; the insurance company on the 16th day of April, 1900, and Johnson on the 9th day of April, 1900, the latter asking damages for the issuance of the restraining order in the sum of $100, and praying that the cross bill of the insurance company be dismissed for want of equity, and for judgment against the insurance company for the amount of the policy. The cross, complaint of the insurance company sets up, among other things, that defendant Johnson failed to notify it of the time and circumstances of the fire in writing, as required by the conditions of the policy; that he, in his alleged proof of loss on the building made out on the 5th of April, 1900, falsely swore that the fire occurred on the 7th of February, 1900, when, in fact, it occurred on the 31st of January, 1900, as he well knew; that, had said false statement as to the date of the fire been true, his said proof of loss would have been made out and presented in time, but, being false, and the true date being the 31st January, 1900, as before stated, his said proof was not made out within the sixty days after the fire, as provided on the policy, and that such false swearing and delay in making the proof of loss, as well as failure to give notice of the occurrence of the fire in writing, with inventory, constituted breaches of the conditions of the policy, such as defeat the right of recovery thereon. The answer of Johnson to the cross complaint of the insurance company admits the incorrectness of the date as named in his proof of loss, and that it should have been the 31st January, 1900, as claimed by the insurance company, but says that the error was a mistake on his part, and that it was not intentionally committed, and that it was immaterial in this, that he filed his proof of loss within the sixty days of the true date of the fire, to-wit: on the 13th day of March, 1900; and further he says that he was not required by the conditions of the policy to give notice of the occurrence of the fire in writing, and that he gave all the notice required of him. The evidence shows that a friend of Johnson’s, at his instance, sent a postal card signed by himself to the local agent of the insurance company on which was stated that Johnson’s house had burned up on the 31st January, or words to that effect, and this was sent by the local agent to the general agent at Tittle Rock; that Johnson sent an inventory of the personal property alleged to have been destroyed to the 'general agent at Little Rock, who, observing that the same was not in compliance with the conditions of the policy, sent him a blank form or forms upon which to make out his proof, expressly stating that he could do so if he desired. Johnson delayed making out his proof of loss until the 5th of April following, and then made out the same as to the house and on a separate sheet as to the personal property. The conditions of the policy touching the questions involved are as follows, to-wit: If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company, * * * and within sixty days after the fire, unless such time is extended in writing by this company; shall render a statement to this, company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property; the cash value of each item thereof and the amount of loss thereon; all incumbrances thereon; all other insurance, whether valid or not, covering any of said property, and a copy of all the descriptions and schedules in all policies; all changes in the title, use, occupation, location and possession or exposures of said property since the issuing of this policy; by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of the fire.” Also the following: “No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire.” It is also provided that false swearing as to any of the matters involved will defeat recovery. Upon the findings and evidence the chancellor found in general ap-ainst the contentions of the insurance company, and rendered judgment against it, directing the payment of $200 to the Riverside Lumber Company and $300 to Johnson of the insurance, and dismissed the cross bill of the insurance company. The proof of loss, granting that the same was sufficient, was not made within the sixty days. This delinquency constitutes a bar to the action, and a breach of the conditions of the policy. The fire occurred on the 31st of January, 1900, and this suit was instituted on the 19th day of February, 1900. The courts cannot make contracts between parties, nor can the courts at all times determine what is material and what is not. These things are left to the parties to determine for themselves, as a general rule. We cannot also see the particular reason the parties have in mind when making their contracts. We construe the meaning of these contracts, when construction becomes necessary; but when undisputed conditions are made, we are bound by them as are the parties to such contracts. It appears to us that there was one or more plain breaches of the conditions of the policy, and that these breaches by the insured prevents his recovery thereon. Reversed, and decree entered here for the appellant.