{ "id": 1369434, "name": "Western Assurance Company v. White", "name_abbreviation": "Western Assurance Co. v. White", "decision_date": "1926-07-12", "docket_number": "", "first_page": "733", "last_page": "738", "citations": [ { "type": "official", "cite": "171 Ark. 733" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "44 N. Y. S. 979", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 3505676 ], "opinion_index": 0, "case_paths": [ "/nys/44/0979-01" ] }, { "cite": "40 Mich. 241", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1328431 ], "opinion_index": 0, "case_paths": [ "/mich/40/0241-01" ] }, { "cite": "27 Atl. 1077", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "80 Am. St. Rep. 538", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "80 N. W. 573", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "121 Mich. 591", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1550768 ], "opinion_index": 0, "case_paths": [ "/mich/121/0591-01" ] }, { "cite": "123 Am. St. Rep. 495", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "108 S. W. 9", "category": "reporters:state_regional", "reporter": "S.W.", "pin_cites": [ { "page": "1134" } ], "opinion_index": 0 }, { "cite": "209 Mo. 513", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 923245 ], "opinion_index": 0, "case_paths": [ "/mo/209/0513-01" ] }, { "cite": "189 S. W. 626", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "59 Am. Rep. 52", "category": "reporters:state_regional", "reporter": "Am. Rep.", "opinion_index": 0 }, { "cite": "42 N. J. 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St. Rep. 766", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "39 N. E. 337", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "144 N. Y. 306", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2264056 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ny/144/0306-01" ] }, { "cite": "36 Ark. 355", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872406 ], "opinion_index": 0, "case_paths": [ "/ark/36/0355-01" ] }, { "cite": "58 Am. Rep. 752", "category": "reporters:state_regional", "reporter": "Am. Rep.", "opinion_index": 0 }, { "cite": "1 S. W. 66", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "47 Ark. 175", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888717 ], "opinion_index": 0, "case_paths": [ "/ark/47/0175-01" ] }, { "cite": "61 Ark. 388", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902329 ], "opinion_index": 0, "case_paths": [ "/ark/61/0388-01" ] }, { "cite": "268 S. W. 609", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "167 Ark. 134", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1377011 ], "opinion_index": 0, "case_paths": [ "/ark/167/0134-01" ] }, { "cite": "100 S. W. 751", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "82 Ark. 150", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1529077 ], "opinion_index": 0, "case_paths": [ "/ark/82/0150-01" ] }, { "cite": "86 S. W. 817", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "75 Ark. 98", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1502503 ], "opinion_index": 0, "case_paths": [ "/ark/75/0098-01" ] } ], "analysis": { "cardinality": 573, "char_count": 10763, "ocr_confidence": 0.521, "pagerank": { "raw": 1.431721250871493e-07, "percentile": 0.6514088273100092 }, "sha256": "dbde9c3c763ed3d02549d6322ef5378d688598784d5a9c05541b3e7e5a6b695c", "simhash": "1:b3c6c55baeabfc48", "word_count": 1928 }, "last_updated": "2023-07-14T23:00:35.231048+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Western Assurance Company v. White." ], "opinions": [ { "text": "Smith, J.\nThe appellant insurance company issued to appellee individually a policy of insurance on a building owned by appellee and his wife as tenants by the entirety for the sum of $1,500. The policy contained, a provision limiting the concurrent insurance on the building to $4,000. Additional insurance on the building was taken out by appellee, so that, at the time of the fire which destroyed the building, there was $5,500 insurance oq it. The policy contained a clause which provided ,that it should be void if the total concurrent insurance, exceeded $4,000. The policy also contained a provision that it should be void \u201cif the interest of the insured be other than unconditional and sole ownership.\u201d\nThe insurance company denied liability upon two grounds: first, because insurance in excess of the concurrent insurance allowed by the policy sued on had been taken out; second, because appellant was not the sole and unconditional owner of the building.\nThere was a verdict and judgment for the owner, and the insurance company has appealed.\nThe .validity of a clause in an insurance policy limiting, the total concurrent insurance and invalidating the policy if that amount is exceeded has been frequently recognized by this court; indeed, it is recognized and enforced universally, but it has been held by this and all other courts that, while the clause is valid, it may be' waived. That such a provision may be waived was declared by this court in the case of German-American Ins. Co. v. Harper, 75 Ark. 98, 86 S. W. 817, and that case has since been several times followed.\nWithout setting out the testimony showing knowledge of the Excess of insurance, it may be said that the testimony warranted the jury in finding that the agent of the appellant company had such knowledge of this fact, and that its conduct was thereafter such as to reasonably imply a purpose not to insist upon a forfeiture of the policy on that account, and, this being true, the' verdict. of the jury finding that there was a waiver of this provision .is conclusive of that fact. Ark. Mutual Fire Ins. Co. v. Claiborne, 82 Ark. 150, 100 S. W. 751.\nUpon the second question, it may be said that the undisputed testimony shows that appellant and his wif\u00e9were the owners of the insured property as tenants by the entirety, \u00e1nd there was.no testimony charging the insurance company, or its agent, with knowledge of that fact,, so that it cannot be contended, in fact it is not insisted, that there was any waiver of the provision of the policy that it should be void \u201cif the interest' of the\u2019 insured be other than unconditional and sol\u00e9 ownership. \u2019 \u2019 On the contrary, the insistence is that appellant, as a tenant by the entirety, was the sole and. unconditional owner.\nWe do not agree with counsel in this insistence. - If being a tenant by the entirety made appellant the sole and unconditional owner, then his wife, the other tenant by the entirety, would also be the sole and unconditional owner, and we would have the anomalous condition of two persons each being the sole and unconditional owner, for her interest is as great as his, and she has the same right to the use and possession of the property and the same right to' share in the rents and profits thereof. In the recent case of Moore v. Denson, 167 Ark. 134, 268 S. W. 609, we had occasion to consider the nature of the respective rights of the holders of an estate of this kind. .In that case a judgment had been recovered against the husband, and we held that his interest in the estate might be sold under execution subject to the \u201cwife\u2019s right of survivorship.\nThis holding followed from the prior holding of this court in the case of Branch v. Polk, 61 Ark. 388, where the court considered the effect on estates by the entirety of the provisions of our Constitution and statutes which had enlarged the rights of married women. Mr. Justice Rnu dick, speaking for the court, said: \u201cIn this State a married woman has full control of her separate property, and may convey and dispose of it as if she were a feme sole. Our Constitution and statute have excluded the marital rights of the husband therefrom during the life of the wife; Const. 1874, art. 9, \u00a7 7; Sandels & Hills\u2019 Digest, \u00a7 4945; Neelly v. Lancaster, 47 Ark. 175, 1 S. W. 66, 58 Am. Rep. 752; Roberts v. Wilcoxson, 36 Ark. 355. We think that the effect of these provisions Was to give the wife control of all the property owned by her, including her interest in an estate by tbe entirety as well as other real estate. To say that it did not apply to an estate by entirety would be to deprive her of a share in. the.rents and profits of such an estate during the life of her husband, and would establish an exception to the operation of the Constitution and statute resting on no valid principle or reason. Hiles v. Fisher, 144 N. Y. 306, 39 N. E. 337, 43 Am. St. Rep. 766. On the other hand, to say that neither she nor her husband could convey any interest in such an estate except by a joint deed would tie up the estate and prevent either of them from controlling or disposing of his or her interest without the consent of the other. It would also result in placing it beyond the reach of the creditors of either of them, and such is the rule followed in several of the States. McCurdy v. Canning, 64 Pa. St. 39; Chandler v. Cheney, 37 Ind. 391; Naylor v. Minock, 96 Mich. 182, 55 N. W. 664, 35 Am. St. Rep. 595, and note.\u201d\nThe learned justice there also said: \u201cThe rational construction of these provisions of our Constitution and statute, which \u2018uprooted principles of the common law hoary with .age, \u2019 swept away the marital rights of the husband during the life of the wife, and gave enlarged powers to married women, is, not that they lessen the power of the husband over his own interest in an estate by entirety, but, that they deprive him of the control over the interest of the wife which he formerly exercised jure uxoris, and confer upon the wife the control of her own interest. The right of the wife to control and convey her interest, we think, is now equal to the right of the' husband over his interest. They each are' entitled \"to one half of the rents and profits during coverture, withpower to each to dispose of or charge his or her interest, subject to the right of survivorship existing in the other. Hiles v. Fisher, 144 N. Y. 306; 43 Am. St. Rep. 762: Buttlar v. Rosenblath, 42 N. J. Eq. 651, 59 Am. Rep. 52.\u201d\nIt follows therefore 'that the husband has no longer, as at common law, control over the interest' of his wife in an estate by the entirety, but she has the right jo\" an equal and separate enjoyment of the proceeds derived from such an'estate.\nThe language, \u2018 \u2018 unconditional, and sole ownership, \u2019 \u2019 appearing in the policy sued on, has 'been many times defined'in the textbooks on insurance and in the reported cases as follows;' \u201cAn insurance ownership is sole when no. one else has any interest in the property,.as owner, and is unconditional when the. quality of the estate is not limited. or affected by any condition.\u201d Royal Ins. Co. Ltd., v. Shirley, 106 Sou. (Miss.) 884.\nUnder this definition a tenant by the entirety does not qualify- as a sole owner. Indeed, we -have found no ease holding, that a tenant by the entirety was a' sole owner and entitled to recover a,s such, where the policy of insurance required that the insured be the sole owner. The rule is stated to the contrary in 26 C. J., chapter Fire Insurance, \u00a7 219, page 180, where it is said: \u201cWhen the title is in husband and wife jointly, the husband cannot insure as sole and unconditional or absolute owner.\u201d We have examined the cases cited in the note to the text quoted and we -find they fully sustain the text.\nThe case of Turner v. Home Ins. Co., 189 S. W. 626, is cited as an apparent exception to the rule. This was a decision by a Court of Appeals of Missouri, but it was recognized and stated in that case that \u201cwhere the assured\u2019s title is under a deed, making him only- a tenant by the entirety with his wife, he is not the sole and unconditional owner.\u201d The court further said: \u201cIf this had been all that was shown in this case as to the title, we would be inclined to hold the policy void, in view of what the Supreme Court (of Missouri) held as to the wife having a substantial interest when holding as a tenant by the entirety, in Holmes v. Kansas City, 209 Mo. 513, 108 S. W. 9, 1134, 123 Am. St. Rep. 495. \u201d\n- But that court said that the undisputed testimony' in that ease showed that the husband had purchased and paid for* the property without any intention that any interest in, it be conveyed to his wife, and that therefore there was a resulting trust in the husband\u2019s favor, and he-was'therefore the equitable owner of the property. It therefore appears that this case is not in fact out of. line with other cases on the subject.\nWe conclude therefore that appellee was not the sole and unconditional owner of the property, and, as it Was not shown that the insurance company had waived this provision of the policy, it follows that a right to recover on the-policy-was not shown. 2 Joyce on Insurance, \u00a7 1048A; 6 Cooley\u2019s Briefs on Insurance, \u00a7 1382 (J); Clawson v. Citizens\u2019 Mutual Fire Ins. Co., 121 Mich. 591, 80 N. W. 573, 80 Am. St. Rep. 538; Schroedel v. Humboldt Fire Ins. Co., 27 Atl. 1077; Ostrander on Fire Insurance, \u00a7 63; \u00c6tna Ins. Co. v. Resh, 40 Mich. 241; Genesee Falls Assn. v. U. S. Fire Ins. Co., 16 App. Div. N. Y., 44 N. Y. S. 979.\nThe judgment-of the court- below will-therefore be reversed, and the cause remanded.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "MoMillen & Scott, for appellant.", "John E: Miller, Cul L. Pearce and John D. DeBois, for appellee. \u25a0" ], "corrections": "", "head_matter": "Western Assurance Company v. White.\nOpinion delivered July 12, 1926.\n1. Insurance \u2014 limitation op concurrent insurance. \u2014 A fire insurance policy may properly limit the total concurrent insurance and invalidate the policy if that amount is exceeded.\n2. Insurance \u2014 limitation op concurrent insurance \u2014 waiver,\u2014 While a clause in a fire insurance policy limiting the total concurrent insurance in the property is valid, it may be waived by the insurer; and where there was evidence that the insurer\u2019s agent knew of the excess of insurance, and the insurer\u2019s subsequent conduct was such as to imply a purpose not to insist upon a forfeiture on that account, a verdict finding that there was a waiver of this provision is conclusive.\n3. Insurance \u2014 sole ownership. \u2014 A husband who is tenant by the curtesy is not the sole owner within a fire insurance policy requiring to have the sole ownership, since his wife has a right to an equal and separate enjoyment of the proceeds derived from such an estate.\nAppeal from. White Circuit Court; E. D. Robertson, Judge;\nreversed.\nMoMillen & Scott, for appellant.\nJohn E: Miller, Cul L. Pearce and John D. DeBois, for appellee. \u25a0" }, "file_name": "0733-01", "first_page_order": 749, "last_page_order": 754 }