Fidelity-Phenix Fire Insurance v. Friedman , 117 Ark. 71 ( 1915 )

Hart, J.,

(after stating the facts). (1) It is first insisted by counsel for the defendant that the court erred dn refusing to continue the' case upon their motion. The record discloses that about ten days before the cases were set for trial Klingensmith, an -architect of the -city of Fort Smith, was employed by the defendants to -make an examination of the damaged building -and to prepare plans and specifications of what wa-s necessary to restore it to its original -condition, with an estimated .cost thereof. He performed 'this work, but when the ease wias called for trial, or a day before the cases were set for trial, he be'oame suddenly ill and was not able -to he present in court as a. witness. Upon the hearing .of the- motion the plaintiffs introduced testimony tending- to show that another architect could take the -estimates -and specifications prepared by Klingensmith and explain them to the jury. The court denied the motion for a continuance, and the specifications and estimates prepared by Klingensmith were read to the jury as his -deposition, no objection being made by the plaintiffs. Under -these circumstances, we -do not think the court abused its discretion in refusing to -continue the -case on account -of the illness -of Klingemsmith. Moreover, the record -shows that the trial of the case continued for several days, that other architects for the -defendants examined the building -and testified for them in the case. Besides this, the record shows that they employed several contractors- who made an examination of the building and testified i-n -detail -a,s to-the parts damaged -and the cost of restoring the building to its -condition as it was before the fire.

(2) After the -oases were .consolidated -and -during th-e formation of the jury, the eight defendants contended that they were each entitled to three peremptory challenges under section 4536 of Kirby’s Digest, and assign as error the -action of the court in refusing them the sáme. In support of their contention they cite the ease of Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285. It must he conceded that that decision .sustains the contention of the defendants, but we do not 'agree with the reasoning of the court in that ease. The act of May 11,1905, under which the cases were consolidated, provides, in effect, that when causes of action 'of like nature or relative to the same question are pending before any of the circuit courts of this State, the court may make such orders and rules concerning the proceedings therein as may be conformable to the uses of courts for avoiding unnecessary costs and delay in the administration of justice and may consolidate said causes when it appears reasonable to do so.

In the case of 'the St. Louis, I. M. & S. Ry. Co. v. Raines, 90 Ark. 482, and other cases cited therein, we held that the object of the act in question was to save a repetition of evidence and an unnecessary consumption of time and costs in actions depending upon the same or substantially the same evidence, or arising out of the same transaction.

It is evident that if the contention now made by the defendants should be sustained by the court that one of the principal objects of the statute would be defeated. If the defendants were each entitled to three peremptory challenges then it follows as a matter of course that the plaintiffs would be entitled to three peremptory challenges against each of the defendants. The result would be an unnecessary consumption of time in the formation of the jury. New panels would have to be summoned because it is obvious that the regular panels would be exhausted before the jury could be obtained if the plaintiffs and defendants were allowed three peremptory challenges each, as contended for by counsel for the defendants.

It may be true that in some cases for special reasons some of the defendants might want to challenge certain jurors which the other defendants might want retained, and vice versa; but such matters as these would be properly urged as reasons why the cases 'should not be eonsolidated, or as reasons why the court ¡abused its discretion in ¡consolidating the cases.

We are of the opinion that the act of May 11, 1905, contemplates that when actions are ¡consolidated under it, they shall proceed to trial as one action, and that the procedure shall ¡be governed by the rules .applicable to one action. It follows that if ¡the ¡case is to be treated as one action, the plaintiffs .and defendants are only entitled to three peremptory challenges each, under section 4536 of Kirby’s Digest.

In the ¡easeoibefore us the record does not ¡show .that the court abused its discretion in ¡consolidating the actions. The policies issued by the insurance companies were the standard forms of insurance policies and contained in all essential respects the same provisions. The same fire occasioned the loss under all of the policies and the defenses to be made by the defendants; were substantially the same. The companies- employed the’same attorneys .and the record does not .show that the -defendants were in .any way prejudiced by the consolidation of the causes. Their only claim was that each -of them had the right to exercise three peremptory challenges, and as we have already seen, we think the act of May 11, 1905, contemplates that the actions when consolidated, should proceed to trial as one action, .and be governed by the statutes relative -to the trial -of ¡a single action.

(3) The policies ¡sued upon contain the provision that the insured shall ¡give immediate notice in writing of any loss. This notice was not given-to all of the companies and error is assigned on that account. The record .shows that the .adjusters for all of the companies came to Fort Smith a short time after the fire occurred for the purpose •of adjusting the losses between the plaintiffs and defendants. The .object to be effected by the provision for giving immediate notice ’¡of any loss to the company is that the company may investigate the extent and character of the loss and the circumstances surrounding it, -and •also that it may take .such steps as are necessary to protect the property from further loss. This was one of the objects of the adjusters in visiting Fort Smith after the fire occurred. The companies had notice of the loss ¡and it would have been a vain and useless thing to have required the plaintiffs to give them notice.

(4) In making out their proof s of loss, the plaintiffs omitted therefrom the damages which were suffered by the front and rear walls of the building being out of plumb. This item of loss being omitted from the proofs of loss, it is ¡contended by counsel for the defendants that the court erred in permitting proof to be introduced to the jury on that question. We ¡do not agree with them in this ¡contention. Proofs of loss are primarily intended for securing an adjustment between the insured and the insurer. The statéments as to the amount and circumstances of the loss will not be binding on the insured so as to preclude his recovery of the real amount of the loss unless there has been <a violation ¡of some provision of the policy. 19 Cyc. 854.

It will be seen that the contention of counsel for the defendants is that, as a matter of law, the plaintiffs are bound by their proofs of loss as to the amount of the loss suffered by them. It is generally held that proofs of loss will not estop a plaintiff, but that in a suit upon the policy he may give evidence of the actual ¡amount of 'his loss and recover accordingly. The reason is that proofs of loss are required for the purpose of furnishing the insurer with information upon which to determine the amount of his liability and to serve as a basis for the adjustment of the loss with the insured. It is merely an estimate of the party, and where a settlement is not made upon it, it is not ¡conclusive of the amount due by the insurance company to the insured, but the insured may recover in a suit upon the policy the amount established by the evidence as the true amount of his loss.

(5) It is ¡claimed by counsel for the defendants that the court erred in permitting Lewis Friedman to testify because he was the husband of one of the plaintiffs. There was no error in this for two reasons. One is that the life insurance company which had a mortgage on the property insured was ¡a party plaintiff to the action. The husband of the plaintiff, Mrs. Friedman, was a competent witness in .behalf of the insurance 'company, and the record does not show that counsel for the defendants asked that the testimony be limited to the recovery sought by the life insurance company.

The fourth subdivision of section 3095 of Kirby’s Digest provides that a husband or wife may be .allowed to testify for the other in regard to .any business transacted by the one for the other in the capacity oif agent. The record shows that when the fire occurred, the plaintiff, Leah Friedman, constituted her husband her agent in all matters pertaining to the adjustment of the loss between her and the fire insurance companies. Therefore, under .the statute the husband was .a competent witness to testify as to all matters relating to the agency. It was clearly competent for Mm to state that he met the adjusters and went with them to the scene of the fire, .and made an examination of the building and of other matters pertaining to a settlement of the loss.

It is true that the record shows that the husband .also testified in regard to a steel girder running through the length of the building near its center which is alleged to have caused the damage to the front and rear walls of the building. We need not decide whether tMs was a matter pertaining to the agency or not, for no objection was made to the testimony of the witness in this regard. The objection made was when he took the stand as a witness, and was a general objection that he was incompetent to testify in the case. As we have already seen, he was competent to testify as to matters relating to his agency, and if he testified .as to matters not within the scope of his agency, the def endants should have then made a specific objection as to this testimony. Not having done so, under the settled rules of this court, they are not now in an attitude to complain.

(6) After the completion of the trial and after the jury returned its verdict and judgment had been entered upon it, the defendant sent .an areMtect to the building who attempted to uncover the steel girder throughout the whole length of the building. Before he had proceeded very far in this work, he was .stopped by the plaintiffs. It is now the contention of the defendants that if they had •been permitted to expose the girder throughout the length of the building the fact would have been disclosed that the girder had not become heated and expanded so as to cause the wall in the front and rear of the building to become out of plumb, .and the affidavit of the witness was introduced tending to show that the walls did not become out of plumb because of the expansion of the girder by the fire. We do not think the court abused its discretion in refusing to allow a new trial on 'this account. The trial lasted three or four days, and the burned building was situated in the same city in which the trial was had. The fact that the girder caused the front and rear walls of the building to become out of plumb was established by the testimony of plaintiffs and the defendants "had ample time to make the examination during the course of the trial.

Besides this, some of the witnesses for the plaintiffs testified that the fire occurred on the coldest night of the winter, and that the next morning the water which had been thrown upon the building in an effort to extinguish the fire had become frozen and that the ice thus formed tended to force the walls out of plumb.

Still another witness for the plaintiffs testified that the action of the fire itself on the building might have caused the walls -to crack and to become out of plumb. And in any event 'the defendants might have caused the examination to be made during the progress of the trial, and are not in ian attitude now to complain.

(7) We have not been urged to reverse the case because the evidence is not sufficient to warrant the verdict, and for that reason we have not deemed it necessary to fully abstract and set out in detail the evidence pertaining to the amount of the damages suffered by the plaintiffs. It is not our province to pass upon the credibility of the witnesses or the weight to be given their testimony. If the verdict has .any substantial evidence to support it,' it is our duty to uphold it, and we are of the opinion that there was sufficient evidence to support the verdict.

(8) The jury returned a verdict for the whole amount of damages claimed by the plaintiffs, and the court rendered judgment against each of the defendants for the proportionate amount of the loss due by it under the terms of its policy. Error is .assigned by counsel for the defendant on this account. There w.as no error in the action of the court. The policies themselves fixed the proportionate amount that should be paid by each of the insurance companies in case of loss, and the action of the court in rendering separate judgments against each of the companies was the result of a calculation provided for in the policies themselves, and no possible prejudice could have resulted to the defendants therefrom.

(9) It is finally insisted by counsel for the defendants that the court erred in allowing attorneys ’ fees of $1,000 and a penalty of 12 per cent under the statute, and in this contention we think they are correct. It is true the verdict of the jury was for the amount sued for bv the plain - tiffs, but the court required them to enter a remittitur of $2,500 as a prerequisite to overruling the motion for a new trial filed by the defendants. The ultimate amount which the plaintiffs recovered was the amount for which the court rendered judgment, and this was less than the' amount sued for. Therefore, we do not think the court should have assessed the attorney’s fee against the defendants or the penalty under the statute. See Pacific Mutual Life Insurance Co. v. Carter, 92 Ark. 378; Industrial Mutual Indemnity Co. v. Armstrong, 93 Ark. 84.

It follows that the judgment of the court in this respect will be reversed and the amount oif the attorney’s fee and the penalty will not be allowed as a part of the judgment.

The judgment as to the amount due to the plaintiffs under the policies as damages will be affirmed.