Lord v. Des Moines Fire Insurance

McCulloch, C. J. This is an action instituted by W. H. Lord on a policy of fire insurance in defendant company on his dwelling house and household goods in the town of El Dorado, Arkansas. The trial court instructed the jury to return a verdict in favor of the defendant, and from a judgment in the latter’s favor the plaintiff appealed. The answer tendered two defenses, which are insisted on here in justification of the judgment of the lower court, namely, a forfeiture on account of other insurance obtained on the property without the consent of defendant company, which is forbidden by the terms of the policy, and failure of the insured to furnish proofs of loss as required by the policy. It is contended on the part of the plaintiff that testimony was adduced at the trial tending to establish a waiver of the forfeiture in obtaining other insurance, also a waiver of the proofs of loss, and that the case should have been submitted to the jury on these issues. The plaintiff testified, in substance, that a few days after the fire occurred which destroyed the insured property an adjuster of the company came to El Dorado to adjust the loss; that he informed said adjuster that he had procured additional insurance on the household goods, and that thereafter the adjuster viewed the fire and then instructed him (witness) to get a carpenter to make an estimate of the cost of ¡building such a house, and that the company would either rebuild the house or Settle for it. He testified further that he employed a carpenter to make an estimate, and paid him for it, and that the same was delivered to the adjuster as requested. He stated also that he informed the adjuster as to the articles of household goods that had been saved, and that the adjuster said that he was satisfied With the statement. There was a conflict in the testimony, but it was sufficient to warrant a submission to the jury of the question of the waiver of the forfeiture and of the proofs of loss, and the court erred in taking the case from’ the jury by a peremptory instruction. The act of the adjuster, after becoming possessed of information as to the alleged forfeiture in procuring other insurance, in requesting the insured to furnish estimates of the loss upon his promise to pay or to rebuild the house operated as a waiver of the forfeiture. “When the insurer,” said this court in Planters’ Mutual Insurance Co. v. Loyd, 67 Ark. 585, “with knowledge of any act on the part of the assured which works a forfeiture, enters into negotiations with him which recognize the continued validity of the policy, and thus induce him to incur expense or trouble under the belief that his loss will be paid, the forfeiture is waived.” In German Insurance Co. v. Gibson, 53 Ark. 494, this court said: “Forfeitures are not favored in law; and any agreement, declaration or course of action on the part of an insurance company which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by conformity on his part, will estop the company from insisting upon the forfeiture.” This statement of the law has been quoted and applied in other decisions of this court. Phoenix Ins. Co. v. Fleming, 65 Ark. 54; Queen of Ark. Ins. Co. v. Forlines, 94 Ark. 227. The acceptance by the adjuster of the estimate of the cost of the building and the verbal statement of t'he defendant as to the articles of household goods lost and those saved, accompanied by the promise to pay, constituted a waiver of further proof unless demanded. Minneapolis Fire Ins. Co. v. Fultz, 72 Ark. 365; Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475; Home Ins. Co. v. Driver, 87 Ark. 171; American Ins. Co. v. Haynie, 91 Ark. 43. Reversed and remanded for a new trial.