{
  "id": 1691696,
  "name": "Peoples Indemnity Insurance Co. v. Mashburn",
  "name_abbreviation": "Peoples Indemnity Insurance v. Mashburn",
  "decision_date": "1961-05-08",
  "docket_number": "5-2394",
  "first_page": "575",
  "last_page": "578",
  "citations": [
    {
      "type": "official",
      "cite": "233 Ark. 575"
    },
    {
      "type": "parallel",
      "cite": "345 S.W.2d 922"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "205 Ark. 139",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1488231
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
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    {
      "cite": "218 Ark. 522",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1611935
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/ark/218/0522-01"
      ]
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  "last_updated": "2023-07-14T17:50:46.694457+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Peoples Indemnity Insurance Co. v. Mashburn."
    ],
    "opinions": [
      {
        "text": "Sam Robinson, Associate Justice.\nAppellant, Peoples Indemnity Company, issued to appellees a policy of fire insurance covering a house located on a farm. The policy contains the following provisions: \u201cUnless otherwise provided by agreement in writing added hereto, this company shall not be liable for loss or damage occurring, . . . (b) while the hazard is increased by means within the control or knowledge of the insured; or . . . (d) while the described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of ten days; or without written endorsement attached hereto; . . .\u201d\nThe house burned and the insurance company refused payment on the policy. Appellees then filed this suit. There was a jury verdict for the policyholders and the insurance company has appealed. In its answer the insurance company alleged: \u201cThe plaintiffs failed to comply with the provisions of the insurance policy [above mentioned], in that the hazard insured against was increased by means within the control or knowledge of the insured, since the policy was issued insuring the property as a tenant dwelling, whereas, in fact, it was not used as such and that fact was not known to the defendant company or any of its agents, and, further, the property insured was vacant and unoccupied beyond a period of ten days without any written endorsement attached to the policy and without any knowledge of the defendant or its agents.\u201d\nMr. S. L. Griffin was the agent who wrote, the policy in question and he had full authority to write and deliver policies for the insurance company. At the time the house burned, the property was rented to Faber Thomas and his son and it was shown that the house had not been occupied for more than ten days at the time of the fire nor had the insurance company given its consent to the vacancy. In fact, the house had not been regularly occupied for a long time. It was used to house Mexican laborers at seasonal periods. Mrs. Mashburn, the assured, testified that Mr. Griffin\u2019s firm had been the agency that attended to the issuance of policies on the house for several years and that Mr. Griffin was fully aware that the house was occupied only a portion of the time and that it was vacant at the time the policy was issued. Mrs. Mashburn testified that she specifically gave Mr. Griffin this information. On the other hand. Mr. Griffin denied that he knew the house was vacant at the time he wrote the policy and denied that he knew it was occupied only a part of the time. Thus, there was a question of fact to be decided by the jury, and it was decided in Mrs. Mashburn\u2019s favor.\nThe issue was submitted to the jury by the court\u2019s Instruction No. 3, as follows: \u201cYou are instructed that on Policy No. 1 [there was another policy involved in the trial court that is not in issue on appeal,] it will be your duty to return a verdict for the plaintiffs for the sum of $1,000.00, unless you find that the defendant\u2019s agent, Mr. Griffin, did not know that the house was unoccupied at the time the insurance policy was issued, and that the house was unoccupied as defined by later instructions of the Court.\u201d The only objection appellant made to Instruction No. 3 was that there \u201chad been no evidence in the case which would raise a question of fact on that question.\u201d But, as heretofore pointed out, the testimony of Mrs. Mashburn did raise such an issue of fact. Appellant alleged in its answer \u201cthat the property was vacant for more than ten days without any knowledge of the defendant or its agents.\u201d Appellant failed to prove this allegation in the answer to the satisfaction of the jury.\nIn Washington County Farmers Mutual Fire Ins. Co. v. Reed, 218 Ark. 522, 237 S. W. 2d 888, this Court quoted from Farmers\u2019 Union Insurance Co. v. Hill, 205 Ark. 139, 167 S. W. 2d 874, as follows: \u201c\u2018Hoggard (Insurance Company\u2019s agent) knew the building was not completed and that it had never been occupied by anyone. He had been in and about the building at different times and knew that there was another building within less than 100 feet of the building in question. Under these facts, it is our view that appellant\u2019s agent Hoggard waived the occupancy provision and the untrue statements of appellee in the application as to the distance of the nearest building, or risk, to the property in question, and the length of time that it had been occupied prior to the application. Notice to Hoggard, appellant\u2019s agent, was notice to the principal, appellant, and appellant has waived any right to claim forfeiture of the insurance on account of appellee\u2019s false answers in the application or for violation of the provision of the policy. \u2019 \u2019 \u2019 Appellant now says appellees did. not plead waiver, but no objection was made to Mrs. Mashburn\u2019s testimony regarding Griffin\u2019s knowledge of the vacancy.\nAppellant further argues that the policyholders are precluded from recovery by the following policy provision: \u201cThis entire policy shall be void, unless otherwise provided by agreement in writing added thereto, . . . (d) if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard).\u201d This provision is not applicable because if the property was vacant at the time the policy was issued, as claimed by the appellees, there was no evidence of change in occupancy that increased the hazard.\nAffirmed.",
        "type": "majority",
        "author": "Sam Robinson, Associate Justice."
      }
    ],
    "attorneys": [
      "Frierson, Walker & Snellgrove, for appellant.",
      "Douglas Bradley, for appellee."
    ],
    "corrections": "",
    "head_matter": "Peoples Indemnity Insurance Co. v. Mashburn.\n5-2394\n345 S. W. 2d 922\nOpinion delivered May 8, 1961.\nFrierson, Walker & Snellgrove, for appellant.\nDouglas Bradley, for appellee."
  },
  "file_name": "0575-01",
  "first_page_order": 597,
  "last_page_order": 600
}