{
  "id": 1715495,
  "name": "NORTHWESTERN NATIONAL INSURANCE COMPANY v. Charles B. STANLEY",
  "name_abbreviation": "Northwestern National Insurance v. Stanley",
  "decision_date": "1980-04-23",
  "docket_number": "CA 79-256",
  "first_page": "1058",
  "last_page": "1065",
  "citations": [
    {
      "type": "official",
      "cite": "268 Ark. 1058"
    },
    {
      "type": "parallel",
      "cite": "598 S.W.2d 439"
    }
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    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
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    "name_long": "Arkansas",
    "name": "Ark."
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    {
      "cite": "2 Ohio 452",
      "category": "reporters:state",
      "reporter": "Ohio",
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    {
      "cite": "245 Ark. 1029",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1606957
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      "year": 1969,
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          "page": "1034"
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    {
      "cite": "449 S.W. 2d 491",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "case_ids": [
        10146044
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      "year": 1970,
      "opinion_index": 0,
      "case_paths": [
        "/sw2d/449/0491-01"
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    {
      "cite": "264 Ark. 523",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1668946
      ],
      "weight": 2,
      "year": 1978,
      "opinion_index": 0,
      "case_paths": [
        "/ark/264/0523-01"
      ]
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  "analysis": {
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  "last_updated": "2023-07-14T19:03:10.426772+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "NORTHWESTERN NATIONAL INSURANCE COMPANY v. Charles B. STANLEY"
    ],
    "opinions": [
      {
        "text": "James H. Pilkinton, Judge.\nOn June 9, 1977, Northwestern National Insurance Company issued a renewal of a standard home owner\u2019s policy to appellee, Charles B. Stanley. The policy insured certain jewelry, as scheduled, and a premium of $189.00 was collected for the coverage of this class of personal property. One particular 2.94 carat diamond ring was insured for $7,000 and was described in the schedule as \u201cone lady\u2019s 14K 2.94 Ct. diamond in 6-prong solitaire mounting.\u201d\nMr. Stanley had carried this same coverage for a number of years, and the 2.94 carat ring had been insured for $7,000 under prior policies, and had been worn by the wife of the appellee. Mrs. Stanley died sometime prior to June 9, 1977, when the renewal policy was issued. After his wife\u2019s death, the 2.94 carat diamond was removed from the lady\u2019s mounting and was reset in a gentleman\u2019s mounting so Mr. Stanley could wear it. At the time the policy was renewed, no mention was made of the fact that the diamond had been remounted, or that Mr. Stanley was now wearing it, and the ring was described in the renewal policy schedule as it had been in previous policies.\nThere was an armed robbery on June 20, 1977, at the Stanley retail jewelry store. In addition to other articles taken from the store, the robber took a number of pieces of jewelry personally owned by Mr. Charles B. Stanley. One of the items stolen was the 2.94 carat diamond ring which Mr. Stanley was wearing when the robbery took place.\nMr. Stanley filed a claim with Northwestern National for $7,000 for the theft of the 2.94 carat diamong ring, and also for $2,500 for another ring listed in the schedule of jewelry. The appellant insurance company did not seriously dispute its liability for $2,500, the amount of the insurance on the other ring in question described as one 14 carat white gold man\u2019s diamond ring, but Northwestern National denied liability in any amount for the 2.94 carat diamond ring. It was the position of Northwestern National that it had provided coverage for loss due to theft of a \u201clady\u2019s ring.\u201d Appellant contended that it did not provide coverage for loss of a man\u2019s ring, which was what was stolen. Appellant therefore contended that the 2.94 carat diamond ring was not covered by the policy since it had been remounted from a lady\u2019s setting to a man\u2019s setting. This suit was then filed, pleadings were joined, and the issue of coverage was presented to the jury. The verdict was rendered in favor of appellee for $2,500 covering the scheduled 14 carat gold man\u2019s diamond ring, about which there was little controversy, and $7,000 for the 2.94 carat ring in controversy. Judgment was entered on the verdict, and appellant has appealed.\nI\nAppellant first argues that the trial court erred in refusing to grant the defendant\u2019s motion for a directed verdict.\nIt is well settled that in considering a motion for directed verdict, a trial court must view the evidence and all reasonable inferences that can be made from the evidence in the light most favorable to the party against whom the directed verdict is sought. Housing Authority of the City of Texarkana v. E. W. Johnson Construction Company, Inc., 264 Ark. 523, 573 S.W. 2d 316 (1978) and cases there cited.\nIn this case the trial court was correct in refusing to grant the defendant\u2019s motion for a directed verdict. Contracts of insurance should receive a practical, reasonable and fair interpretation consonant with the apparent object and intent of the parties viewed in the light of their general object and purpose. The jury was entitled to consider the contention of appellee that a reasonable construction of this insurance policy indicates it was the clear intention of the parties to insure the 2.94 carat center diamond. It is undisputed that the diamond stolen was the same diamond that was insured in the renewal policy. A problem as to identification of an item to be insured could arise in many instances, and descriptive words must necessarily be used in the policy to be sure the insured and insurer have agreed upon the particular item covered. In this case, the policy under the heading \u201cJewelry Schedule\u201d describes this diamond of a particular size as set in a 14 carat 6-prong lady\u2019s solitaire mounting. Removing this diamond from the lady\u2019s mounting and resetting it in the gentleman\u2019s mounting did not, as a matter of law, alter the fact that the 2.94 carat diamond could still be insured. There is no provision in this policy that the diamond could not be reset and the insurer could have written this prohibition into its policy if that had been its intention. Certainly the type of mounting could not in itself work a forfeiture of the coverage under the circumstances here. Brown v. International Service Insurance Company, Court of Appeals of Texas, 449 S.W. 2d 491 (1970). The evidence shows that the 2.94 carat diamond had exactly the same value in both settings. According to the testimony, the diamond was worth $7,000 when first insured, and was worth $12,500 when the renewal policy was written. The value of the lady\u2019s mounting was shown to have been $50, and the value of the man\u2019s mounting into which it was reset was shown to have been $100, inconsequential in both instances.\nIn dealing with a different type of insurance, the Arkansas Supreme Court said in Old Republic Insurance Co. v. Alexander, 245 Ark. 1029, at 1034, 436 S.W. 2d 829 (1969):\nThe materiality to the risk of a fact misrepresented, omitted or concealed is a question of fact so long as the matter is debatable. It is a question of law only when so obvious that a contrary inference is not permissible. (Citing cases). This principle is applied to questions pertaining to acceptance of risk as well as those relating to hazard assumed.\nThe above principle also applies in the case before us. It is quite evident that the testimony raised an issue for the jury as to whether the 2.94 carat diamond ring in question as remounted was, in fact, covered by the policy. That issue was submitted to the jury under instructions which are not questioned on appeal. Therefore, we find no merit in appellant\u2019s argument that the court should have granted its motion for a directed verdict.\nII\nAppellant also contends that even if the trial court was correct in submitting the question of coverage to the jury as a fact question, then the judge erred in excluding certain relevant evidence submitted by it pertaining to the issue. Northwestern National proffered the testimony of Ms. Ellen Jennings, one of the company\u2019s underwriters. She would have testified, if permitted to do so, that the insurer\u2019s underwriting rules at the time of the last renewal of the Stanley policy placed a limit of $2,500 on insurance for a single item of men\u2019s jewelry and a limit of $7,500 on insurance for a single item of women\u2019s jewelry. She offered to explain the reason for this difference based upon her knowledge and experience as an underwriter. It was her opinion as an expert that the risk of loss of men\u2019s jewelry is greater than women\u2019s jewelry. She would have testified that experience in the underwriting field has shown that men are more likely to remove their jewelry during the course of a day\u2019s activities and lose it. She said women tend to leave their jewelry on once they have put it on. Men also would normally be in more places where they would be subject to a loss. They are out in the public more and seen more with the jewelry. In Ms. Jennings\u2019 opinion as an underwriter, men are more prone to lose jewelry than women.\nAppellant says that the failure of Mr. Stanley to disclose that the ring had been remounted, and was being worn by him, was material to the risk assumed by it in the renewal policy, and was of such a nature that it, in good faith, would not have accepted the risk for more than $2,500 if correctly apprised of the facts.\nThe import of the proffered testimony was not that the company would have rejected the renewal coverage on the 2.94 carat diamond ring entirely had it known the diamond had been remounted and was being worn by Mr. Stanley, but to show that appellant would have limited the coverage to $2,500 if the disclosure had been made.\nIt was the trial court\u2019s opinion that this proffered testimony was immaterial (as the ring in question was not lost through the carelessness of Mr. Stanley), and was an effort to modify a written contract by oral evidence. The court excluded the offered evidence as inadmissible.\nWhether this type of evidence is admissible depends upon the particular case at hand. 7 Wigmore, Evidence \u00a7\u00a7 1946-1947 (1978). In his discussion, Wigmore cites Hartford Protection Ins. Co. v. Harmer, 2 Ohio 452, where it is stated:\nIt is . . . impossible to say that the opinions of witnesses are never to be received in determining the materiality of facts not disclosed; much less can it be said that they are to be received in all cases. In each case it must depend on the nature of the inquiry . . .\nIn the case at bar, perhaps the reason for the underwriting rule would be immaterial. Be that as it may, the underwriting rule itself would be relevant on the question of whether appellant would have, limited the coverage to $2,500 if it had known of the remounting, and that the ring was then being worn by Mr. Stanley. We do not consider the proffer of this evidence to be an effort to engraft a provision onto an executed contract which was not a part of the written agreement. This evidence was material here merely as throwing light on whether or not appellant would have written the contract (for more than $2,500 on this particular ring) if disclosure had been made. Thus whether the insured knew, or did not know, of the underwriting policy is immaterial to the inquiry here. Wigmore on Evidence, supra, after defining increase of risk as \u201cactual increase of danger\u201d, says:\nThus we are in no way concerned with the question of actual increase of danger. Perhaps it might be clear that the circumstances in the case in hand did not actually increase the danger; but if nevertheless it fell within a class of circumstances scheduled by the insurer (for whatever reason seemed best to him) as increasing the danger, it would \u201cincrease the risk ...\u201d\nAppellant had the right to adopt the underwriting policy limiting the coverage on a single item of men\u2019s jewelry to the sum of $2,500 for any reason, or for no reason at all. If it had such an underwriting policy, it was entitled to place that information before the jury, under the circumstances of this case, for the jury\u2019s consideration along with all of the other competent evidence. Since under the circumstances existing it would have been appropriate for this information to have been considered by the jury, we must hold that the trial court erred in excluding it. It was certainly relevant to the fact question that the jury was called upon to decide. Rule 401 of the Uniform Rules of Evidence, Ark. Stat. Ann. \u00a7 28-1001 (Repl. 1979). It is undisputed that appellant had in the same schedule insured another ring, in a man\u2019s mounting, for only $2,500.\nUnder the circumstances in this case, if the proffered testimony as to the underwriting practice had been admitted, and if believed by the jury, appellant would still have been subject to a judgment for the $2,500 coverage on the 2.94 carat diamond ring. In a situation such as this one, where the minimum amount can be determined for which appellant would be liable under its own theory of the case, it would be proper to permit appellee to remit down to that figure. Hence the judgment will be affirmed if a remittitur of the excess above $2,500 for the 2.94 carat diamond ring is filed within 17 days from the date of this opinion; otherwise the judgment will be reversed and the cause remanded for a new trial.",
        "type": "majority",
        "author": "James H. Pilkinton, Judge."
      }
    ],
    "attorneys": [
      "Wright, Lindsey & Jennings, for appellant.",
      "Davidson, Plastiras, Horne, Hollingsworth & Arnold, Ltd. for appellee."
    ],
    "corrections": "",
    "head_matter": "NORTHWESTERN NATIONAL INSURANCE COMPANY v. Charles B. STANLEY\nCA 79-256\n598 S.W. 2d 439\nCourt of Appeals of Arkansas\nOpinion delivered April 23, 1980\nReleased for publication May 14, 1980\nWright, Lindsey & Jennings, for appellant.\nDavidson, Plastiras, Horne, Hollingsworth & Arnold, Ltd. for appellee."
  },
  "file_name": "1058-01",
  "first_page_order": 1094,
  "last_page_order": 1101
}