Capital Fire Insurance v. Montgomery

McCulloch, J. The plaintiff, J. N. Montgomery, instituted this action to recover of the defendant, the Capital Fire Insurance Company, the sum of $575 and interest thereon upon á fire insurance policy issued to him by the defendant on his dwelling house and furniture. The complaint contained the necessary averments as to ownership- of the property and its destruction by fire, the issuance of the policy and the furnishing of the proof of loss, and contained the further allegation that the defendant’s agent had, by fraud, deceit and duress practiced upon him, obtained from him the policy after the fire and kept it. The defendant in its answer pleaded breach of warranty by plaintiff agains-t incumbrances on the property insured; and also pleaded a written release of liability alleged to have been executed by the plaintiff in consideration of the sum of twenty-five dollars paid to him as a compromise and the further Sum of $11.15, un" earned premium paid to him. The answer also contained a denial of the plaintiff’s allegations of fraud and duress in obtaining possession of the policy. A trial before a jury resulted in a verdict in favor of the plaintiff for $575, and the defendant appealed. The defendant asked the court for a peremptory instruction in its favor, which was refused, and exceptions were saved. There were no other requests for instructions, and the instructions given by the court have not been preserved in the record. We must therefore indulge the presumption that the jury was properly instructed. The only errors assigned in the motion for new trial are that the court permitted the plaintiff to testify concerning his oral statements to defendant’s agent who prepared and forwarded the application for insurance about a mortgage on the property, and the refusal of the court to give the peremptory instruction asked. The plaintiff was an illiterate man, and testified that when the application was written by the agent through whom he obtained the policy he informed said agent of the mortgage on the property. This testimony was admissible, and it was not disputed. It operated as a waiver of the warranty that the title to the property insured was unincumbered. Insurance Co. v. Brodie, 52 Ark. 15; State Mutual Ins. Co. v. Latourette, 71 Ark. 242; Franklin Life Ins. Co. v. Galligan, 71 Ark. 295; German-American Ins. Co. v. Harper, 75 Ark. 98; People’s Fire Ins. Assoc. v. Goyne, 79 Ark. 315; Security Mutual Ins. Co. v. Woodson, 79 Ark. 266. Counsel argues that the evidence is insufficient to establish the agency of Woods, the person to whom the information was given. We cannot agree with him in this contention. Woods wrote the application, and appellee stated in his testimony that Woods was the agent of the company, and that he obtained the policy through him. Another witness, Hatch, who was present when the application was prepared, testified that Woods prepared it, and that he was the agent of the company. Neither of these witnesses were asked as to their means of knowledge concerning the agency of Woods, nor did appellant offer any evidence controverting these statements or showing the limits of Woods’s authority as agent. We think there was sufficient to warrant the jury in finding that Woods was the agent of the company with authority to bind it. His authority to receive and forward the application was sufficient to bind the company to any information imparted to him in thé course of the employment. Franklin Life Ins. Co. v. Galligan, 71 Ark. 395; People’s Fire Ins. Co. v. Goyne, supra; Mutual Reserve Fund Life Assn. v. Cotter, ante p. 205. Nor could the company,.by stipulation in the application or policy, escape responsibility for the act of its agent in waiving the falsity of the answer to questions in the applicaton. People’s Fire Ins. Co. v. Goyne, supra. The testimony of the plaintiff shows .that he is not only illiterate, but that he is a very ignorant man. He states that, after the destruction of the property by fire, the adjuster of the company and another agent came to his home in the country, and told him that he “was in United States trouble and had better settle;” that they induced him to go with them to the ■town of Beebe, led him to the hotel, one of them on each side of him holding him by the arm, and then kept him over , night in a room with Woods, the agent, and that they induced him to surrender .the policy. It is - true that he does not testify as to any positive threat or act of violence offered; but, according to the undisputed evidence, the company was liable to him for the loss, and we cannot say that the jury was without warrant in finding that the surrender of the policy and the release of liability thereunder was not fairly obtained from him. As already stated, we must presume that the jury were properly instructed as to the law on this point, and there was sufficient evidence to support the finding. Appellant was entitled to credit on the amount of liability under the policy for the sum paid to him. We assume that the court instructed the jury to that effect. The jury returned a verdict for the amount of the loss, without interest. The interest up to the date of the verdict was sufficient to cover the amount of the payments, and we assume that the jury allowed the credits in that way. There is no error in the proceedings, and the judgment must be affirmed. It is so ordered.