Chunn v. London & Lancashire Fire Insurance

172 S.W. 837, 115 Ark. 555, 1914 Ark. LEXIS 161

Opinion

Kirby, J.,

(after stating the facts). (1) It is insisted that the court erred in refusing* to consolidate the cases at this trial on appellant’s motion, and in instructing the jury that there was no claim for loss of personal property to be considered by them, that matter already having been adjudicated. There was no error in this instruction. The suits for loss under each of the policies had been consolidated in the first trial, and the jury returned a verdict in favor of appellant for the loss of the house and against her for the loss of the furniture and household effects and judgment was rendered accordingly. The insurance company moved for a new trial which was granted as to it and the judgment set aside. The appellant made no motion for a new trial, and, of course, having had a verdict and judgment against her, and not having appealed from it, was bound thereby, the setting aside of the judgment against the insurance company not affecting the judgment against her in its favor.

(2) The court erred, however, in permitting witnesses Shoffner and Mrs. Verser to testify about the statements made to them by Mrs. Goff, detailing the conversation had with Mrs. Chunn relative to the insurance of her property and the burning of the house to collect the insurance. The question at issue was whether or not Mrs. Chunn had destroyed her own property by fire, and this testimony was incompetent and highly prejudicial. It was hearsay and inadmissible, not coming within any recognized exception to the general rule, and in effect was a strong corroboration of the testimony of Mrs. Goff who had been impeached by several witnesses relating her •contradictory statements made on ¡another occasion. Burks v. State, 78 Ark. 271.

Instruction numbered 7, containing a clause of the policy relating to the duty of the insured to protect the property after the fire from further damage, and to separate the damaged and undamaged personal property, the taking care of it after the fire and the furnishing of an inventory thereof stating the quantity and cost of each article and the amount of claim thereon, etc., within sixty days after the fire, signed and sworn to, should not have been given, the court having instructed the jury that there was no issue relative to the loss of the personal property to be tried by it. If appellant desired the jury instructed relative to the matters contained in the instruction after the said clause, it could have been done without including it, and its effect was confusing to the jury. This error should have been reached by specific objection, however, and the case would not have been reversed because of it, none having been made.

We have not examined all the instructions with a view to ascertaining their correctness, since for the error committed in permitting the introduction of incompetent testimony already pointed out, the case must be reversed and will be remanded for a new trial. It is so ordered.