{
  "id": 1688316,
  "name": "Farmers Union Mutual Ins. Co. v. Myers",
  "name_abbreviation": "Farmers Union Mutual Ins. v. Myers",
  "decision_date": "1962-04-23",
  "docket_number": "5-2686",
  "first_page": "1061",
  "last_page": "1066",
  "citations": [
    {
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      "cite": "234 Ark. 1061"
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      "cite": "356 S.W.2d 423"
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    "name": "Arkansas Supreme Court"
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      "category": "reporters:state_regional",
      "reporter": "S.W.",
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    {
      "cite": "83 Ark. 126",
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      "cite": "126 S. W. 719",
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    {
      "cite": "94 Ark. 227",
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      "case_paths": [
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    {
      "cite": "221 Ark. 487",
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      "reporter": "Ark.",
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        1656502
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      "opinion_index": 0,
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    {
      "cite": "118 S. W. 2d 268",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
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    {
      "cite": "196 Ark. 352",
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      "reporter": "Ark.",
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    {
      "cite": "218 Ark. 772",
      "category": "reporters:state",
      "reporter": "Ark.",
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  "last_updated": "2023-07-14T15:15:30.076044+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Farmers Union Mutual Ins. Co. v. Myers."
    ],
    "opinions": [
      {
        "text": "Paul Ward, Associate Justice.\nAppellee, C. I. Myers, sued appellant, Farmers Union Mutual Insurance Company (hereafter referred to as \u201cCompany\u201d), to recover (under the provisions of policy No. 48879) the amount of $936.78 for damage to his dwelling and $493.26 for damage to his furniture, both caused by fire. From an adverse verdict and judgment the Company prosecutes this appeal, urging six points for a reversal. These points will be discussed in the order they are presented, after first setting out the material pleadings and facts.\nThe complaint filed by Myers mentions the policy insuring his dwelling for $4,000 and furniture for $2,000 and further alleges that the policy was in effect when a fire damaged both items to the extent previously noted; that all terms of the policy had been complied with; that demand had been made for $1,430.04, and that all liability had been denied by the Company. The prayer was for the above amount and also for statutory penalty and attorney\u2019s fee. The answer, in addition to a general denial, stated that Myers failed to comply with policy provisions providing for written notice and filing of proof of loss. In his reply Myers stated that he did give notice and requested blanks to make written proof of loss; that the Company\u2019s agent refused to furnish blanks, and also denied liability.\nAt the conclusion of appellee\u2019s testimony he moved to amend his complaint to ask for only $1,055.54. Over appellant\u2019s objections the court allowed the amendment to be made. At that time appellant moved for an instructed verdict which, as will later appear, the court correctly overruled. After the introduction of appellant\u2019s testimony the jury (upon instructions not challenged here) returned a verdict for appellee as asked for in the amended complaint. Thereupon the court rendered judgment in accordance with the verdict, and also gave appellee judgment for attorney\u2019s fee and the statutory penalty.\nThe first assignment of error is that the court allowed the complaint to be amended. This was a matter which addressed itself to the sound discretion of the court. Bridgman v. Drilling, 218 Ark. 772, 238 S. W. 2d 645. Except for the matter discussed below, there is no attempt to show the trial court abused its discretion.\nIt is, however, earnestly contended by appellant that the court allowed the amendment \u201cfor the sole purpose of invoking a penalty statute\u201d. It is then further contended that the amendment came too late to invoke that statute. To support this contention appellant cites several cases which announce the general rule that \u201cthe insured is not entitled to recover a penalty and attorney\u2019s fee when he demanded in his complaint more than he recovered\u201d. The cited cases are not applicable here because they deal with situations where the only issue v\u00edas the amount of recovery. The reason underlying those decisions appears clearly to be that if the assured had demanded the lesser or correct amount the insurer would have the opportunity to pay and avoid the trouble and expense incidental to preparing for and trying a law suit. That was not the situation here, however, where appellant refused to pay any amount and relied on appellee\u2019s alleged failure to give proper notice and to file a proof of loss. The jury\u2019s verdict, however, resolved those issues against appellant upon evidence and instructions not here challenged. The rule applicable under the facts of this ease has been clearly stated and settled by many of our decisions.\nIn Progressive Life Insurance Company v. Hulbert, 196 Ark. 352, 118 S. W. 2d 268, appellee (as beneficiary in a life insurance policy on E. D. Hulbert) sued for $400 and appellant defended on the ground Hulbert was not an insurable risk at the time the policy was issued. During the trial appellee was allowed to amend his complaint to ask for $266.67. That amount was allowed by the jury, and the court rendered judgment for attorney\u2019s fee and penalty. In affirming the trial court we made this statement:\n\u201cBut the sum finally sued for was $266.67, and it was within the discretion of the court to permit this amendment. Had the insurance company offered to confess judgment for this amount when the complaint was amended, it would have been proper to enter a judgment for that amount without penalty or attorney\u2019s fee.\u201d\nIt is noted of course that, in the case under consideration here, appellant did not offer to pay the sum of $1,055.54 when the complaint was amended. Also, in conformity with appellant\u2019s defense in this case, it would not have paid $1,055.54 had only that amount been demanded in the original complaint.\nTo the same effect is the case of Kansas City Fire & Marine Insurance Company v. Kellum, 221 Ark. 487, 254 S. W. 2d 50, where we cited and approved the Hulbert decision. There also attorney\u2019s fee and penalty were allowed, based on facts set out by the Court as follows:\n\u201cThe record reflects that at the conclusion of the evidence in the case, appellee was permitted to amend the complaint and reduce the amount for which he sued to $2,096.96. The extent of appellant\u2019s liability was $3,000. Appellant refused to accept the correctness of appellee\u2019s claim after the reduction and continued to deny all liability. The jury returned a verdict in favor of appellee for the reduced amount of the claim, $2,096.96, upon correct instructions by the court limiting recovery to $2,096.96.\u201d\nIt is our conclusion, therefore, that the trial court was correct in allowing attorney\u2019s fee and penalty in this case since appellant did not offer to pay the sum of $1,055.54.\nIt is next contended that the court erred in refusing to direct a verdict in favor of appellant because there is no substantial evidence to support the jury\u2019s finding it waived notice and proof of loss. We see no merit in this contention. This was a question of fact presented to the jury on instructions not here questioned, and we find substantial evidence in the record to support the jury\u2019s findings. Appellee, in substance, stated lie talked with appellant\u2019s representative after the fire and that the representative said appellant was not going to pay the loss. This same representative admitted he had reported the loss. Another representative of appellant indicated that had a proof of loss been submitted he would have denied liability. This was substantial evidence to support a finding by the jury that appellant denied liability for the loss. In Queen of Arkansas Insurance Company v. Forlines, 94 Ark. 227, 126 S. W. 719, the Court, in this connection, said: \u201c. . . by the repeated rulings of this court a denial of liability, based upon reasons other than a failure to furnish proof of loss, constitutes a waiver of the provisions of the policy requiring proof of loss to be made.\u201d Also, in Yates v. Thomason, 83 Ark. 126, 102 S. W. 1112, the Court said: \u201cAnd it has long been settled by many decisions of this court that a denial of liability waives proof of loss.\u201d\nThere is no merit in the contention that there is no substantial evidence to show proof of damages. On this point appellee was the only witness to testify. He gave his estimate of the amount of damages both as to his house and furniture, based, as to the house, on estimates and repairs made. There was no objection to his testimony, and there was no cross-examination on this point.\nDuring the trial the court refused to allow appellant to introduce testimony allegedly to show facts surrounding the cause of fire, presumably to show appellee may have originated the fire. This issue was not raised by the pleadings and the court\u2019s ruling was correct. Moreover, appellant, in his argument, has not pointed out what testimony was offered.\nWe find no error in the court permitting appellee to testify to certain conversations with appellant\u2019s agent relative to cancellation of the policy after the fire. Again appellant, in argument, does not point out the objectionable testimony. It might have been material to show the authority of the agent to deny liability.\nAppellant is wrong in its contention that the insurance law (relative to attorney\u2019s fee and penalty) does not apply to mutual aid associations. See Act 159 of 1955 (Ark. Stats. \u00a7 66-514) which amended Act 71 of 1939 to include a \u201cfarmer\u2019s mutual aid association\u201d.\nAffirmed.",
        "type": "majority",
        "author": "Paul Ward, Associate Justice."
      }
    ],
    "attorneys": [
      "Charles A. Wade, for appellant.",
      "Switzer \u00e9 Switzer, for appellee."
    ],
    "corrections": "",
    "head_matter": "Farmers Union Mutual Ins. Co. v. Myers.\n5-2686\n356 S. W. 2d 423\nOpinion delivered April 23, 1962.\nCharles A. Wade, for appellant.\nSwitzer \u00e9 Switzer, for appellee."
  },
  "file_name": "1061-01",
  "first_page_order": 1083,
  "last_page_order": 1088
}