{
  "id": 1630041,
  "name": "HOME INSURANCE CO. v. Ernest D. MOYERS",
  "name_abbreviation": "Home Insurance v. Moyers",
  "decision_date": "1972-03-06",
  "docket_number": "5-5735",
  "first_page": "51",
  "last_page": "56",
  "citations": [
    {
      "type": "official",
      "cite": "252 Ark. 51"
    },
    {
      "type": "parallel",
      "cite": "477 S.W.2d 193"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "249 Ark. 1155",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8725807
      ],
      "weight": 2,
      "year": 1971,
      "opinion_index": 0,
      "case_paths": [
        "/ark/249/1155-01"
      ]
    }
  ],
  "analysis": {
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    "simhash": "1:f3ebd0f3147589f0",
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  "last_updated": "2023-07-14T15:11:02.058798+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Byrd, J., not participating."
    ],
    "parties": [
      "HOME INSURANCE CO. v. Ernest D. MOYERS"
    ],
    "opinions": [
      {
        "text": "Frank Holt, Justice.\nAppellant brought this action to cancel its automobile liability policy issued to appellee, alleging that the coverage was fraudulently secured by appellee after the occurrence of an accident. Appellee answered and asserted that a valid binder on the policy was agreed upon in a telephone conversation with appellant\u2019s agent approximately forty-five minutes preceding appellee\u2019s involvement in an automobile accident. The chancellor found that coverage existed and for reversal of that decree the appellant contends that such finding is against the preponderance of the evidence.\nAppellant\u2019s agent, Mr. S. W. Bowker, testified that on Friday night November 20, 1970, the appellee telephoned him at his home stating that his car insurance was up for renewal and he wished to purchase liability insurance on two cars and a truck. The agent was unable to recall any previous conversation about insurance with the appellee. Nevertheless, coverage on the vehicles was discussed and a binder effected. The agent further testified that the appellee \"offered to come over that night, but I told him I didn\u2019t have books at home to take care of it.\u201d When the appellee asked, \u201ccan you bind me\u201d the agent advised him, \"I will bind you in Home Insurance [appellant] and we arranged for me to see him Monday\u201d to complete the application since he (the agent) was attending a football game in Texas the next day. The agent testified that to the best of his recollection the appellee\u2019s telephone call to him was made between 8:15 and 8:30 p.m. and that the call \u201ccame after 8:15 to the best of my knowledge.\u201d He and his wife were watching a TV movie from 7 to 9 p.m. The agent testified that he and his wife had been watching the movie for an hour to an hour and a half when the telephone call came from the appellee: \u201cI know it was in the latter stages of the movie. * * * in the last half [of the movie] to the best of my knowledge.\u201d During the telephone conversation appellant\u2019s agent heard some noise in the background which he could not describe, but stated that appellee\u2019s conversation appeared normal and he did not detect any excitement in appellee\u2019s voice.\nThe agent received a call from the appellee on the following Sunday afternoon and met him about 2:30 p.m. at the agent\u2019s office. The appellee asked: \u201cWas I bound?\u201d The agent told him \u201cyes, what happened?\u201d The appellee told him that he was involved in an accident subsequent to their telephone conversation, on Friday evening. The agent testified that the appellee-insured told him the accident happened at 8:45 p.m. It was later learned from a police report that the accident occurred at 8:05. The agent completed the application and took appellee\u2019s check with the understanding that the check wasn\u2019t any good until appellee put a check on another, party in the bank the next day. Upon a telephone inquiry the next day, the bank advised the agent that appellee\u2019s check was not good. Appellee then brought the agent a third-party check which the agent never cashed because appellee\u2019s insurance was not desired.\nThe appellee testified that because of the illness of a friend in Texas, he and his family intended to make the 5-hour drive there on Friday night. At his wife\u2019s insistence that he secure insurance, he called appellant\u2019s agent \u201caround 7:30 or a quarter until 8.\u201d According to appellee, appellant\u2019s agent seemed to recognize him and asked questions as to any previous accidents, his age, \"teenage drivers\u201d and \u201cwhether my wife drove or not.\u201d Appellee answered all questions asked and also gave the names of lienholders on his cars since that information had to be on the policy. He also furnished his driver\u2019s license number. The agent declined appellee\u2019s offer to come by that night and complete the policy application and to make a down payment on the premium.\nAppellee further testified that on the night of the accident he left his house at 5 or 10 minutes before 8 o\u2019clock; that the accident occurred when he was forced from his lane of traffic and rear-ended another car which had stopped because of another accident; that the force of the impact threw him forward and against the steering wheel, bending it, and threw his son out of the front seat and underneath the dashboard; that he was much concerned about the condition of his wife and three children; that the state policeman made him get into the police car and sit there; that he was bleeding from the mouth, his lips were swollen and he was physically unable to use a telephone; that about 30 minutes after the accident he and his family rode about 6 blocks in the investigating officer\u2019s car from the scene of the accident to a filling station and later from that station to another one nearby to which appellee\u2019s car had been towed; there the officer released him about 9 p.m. and he and his family took a taxi to the hospital. The appellee testified that on the following Sunday afternoon he gave the agent a check for $100 in partial payment of the insurance premium with the explanation it would not be good the next day until the deposit of a third-party\u2019s check was made; and that his wife had $60 or $65 in cash but the agent preferred the check to the cash.\nAppellee\u2019s wife estimated the phone call to appellant\u2019s agent was made between 6:30 and 7 and then changed the time to 7:30 after the court admonished appellee: \"Don\u2019t shake your head, or instruct the witness what to say.\u201d The remainder of her testimony tended to corroborate the testimony of her husband.\nA state policeman who observed the accident testified that he noted in his report that the accident occurred at 8:05 p.m.; that the closest telephone was off the interstate three and one-half blocks away; that as a result of the accident appellee was not very rational and that he had difficulty keeping him out of the traffic and had to place him in his car unit twice; that it took about 20 minutes or longer to investigate the two accidents; that he took appellee and his family to a filling station about 6 blocks from the scene and estimated that he arrived there about 8:30 p.m. and there he continued interviewing people involved in the accidents. He described appellee\u2019s condition: \u201cHe had blood about him in front, on the front of his shirt. He was very emotionally upset. He was \u2014 well, he would make statements about he caused all of it to happen and things like this and he was holding his head and just to be frank, I had a lot of trouble with the man.\u201d He further described appellee\u2019s behavior as being \u201cvery irrational.\u201d The officer\u2019s testimony was that he never observed the appellee using a telephone during the time he had him in his observation and custody which was from 8:05 p.m. until close to 9 p.m. when he released appellee and his family to go to the hospital.\nThe witness who owned the automobile which was struck by appellee testified that he observed appellee at the scene and later at the first filling station where the officer further questioned witnesses. This witness said that he did not see appellee use the telephone; that appellee acted as though \u201che was nuts\u201d and was speaking incoherently; and that he had blood on his face.\nThe appellant further adduced evidence that in several instances appellee\u2019s insurance coverage was can-celled because of nonpayments resulting from disputes as to the amount of premium and scope of coverage; that he was charged about 10 times and convicted once for giving a check with insufficient funds. Appellee explained that these overdrafts were caused by a partner in the construction business withdrawing funds from the bank and that he, appellee, had \u201cpicked up\u201d all the checks.\nAs we understand the record in this case, the only issue presented to the chancellor was whether the telephone call from the appellee to the appellant\u2019s agent, resulting in the binder for insurance, occurred before or after 8:05 p.m. The state policeman saw the accident and fixed the time at exactly 8:05. From that time until approximately 9 p.m. the appellee was in this officer\u2019s custody and observation (except possibly one to two minutes) and he never saw the appellee use a telephone. The officer corroborated appellee\u2019s testimony as to the extent of his injuries and his irrational condition. The chancellor found:\n\u201c* * * When we accept the policeman\u2019s testimony, which was not disputed, we reach the inescapable conclusion that the phone call was made prior to 8 p.m. It is the Court\u2019s opinion that the evidence on this point preponderates in favor of defendant. Stated differently, plaintiff has failed to sustain its burden of proof that this was a post-accident insurance contract.\u201d\nThe court also found that the appellant had not established a fraudulent purpose in securing the insurance coverage.\nOn appeal a chancellor\u2019s decree will not be reversed where factual issues are in dispute unless the court\u2019s findings are against the preponderance of the evidence. Scroggins v. Bowen, 249 Ark. 1155, 464 S. W. 2d 79 (1971). When the evidence is conflicting or evenly poised or nearly so, the chancellor\u2019s judgment on the question of where the preponderance of the evidence lies is considered persuasive. In the case at bar, when we consider all the evidence and especially the investigating officer\u2019s testimony, as did the chancellor, we cannot say as a matter of law that his findings are against the preponderance of the evidence.\nAffirmed.\nByrd, J., not participating.",
        "type": "majority",
        "author": "Frank Holt, Justice."
      }
    ],
    "attorneys": [
      "Griffin Smith, for appellant.",
      "No brief for appellee."
    ],
    "corrections": "",
    "head_matter": "HOME INSURANCE CO. v. Ernest D. MOYERS\n5-5735\n477 S.W. 2d 193\nOpinion delivered March 6, 1972\nGriffin Smith, for appellant.\nNo brief for appellee."
  },
  "file_name": "0051-01",
  "first_page_order": 75,
  "last_page_order": 80
}