Court of Appeals Decisions: General American Life Insurance Co. v. Yarbrough, 8 Cir., 1966, 360 F.2d 562, reversing Yarbrough v. General American Life Insurance Co., W.D.Ark., 1965, 241 F. Supp. 448; Aufderhar v. American Employers Insurance Co., 8 Cir., 1964, 331 F.2d 681; Dixie Furniture Co. v. Central Surety Insurance Corporation, 8 Cir., 1959, 272 F.2d 190, aff'g Dixie Furniture Co. v. Central Surety Insurance Corporation, E.D.Ark., 1959, 173 F. Supp. 862; Dortch v. New York Life Insurance Co., supra. District Court Decisions: Providence Washington Ins. Co. v. Yellow Cab Co., W.D.Ark., 1971, 331 F. Supp. 286; Yarbrough v. General American Life Insurance Co., supra; Dixie Furniture Co. v. Central Surety Insurance Corporation, supra; Hartford Accident Indemnity Co. v. Loyd, W.D.Ark., 1959, 173 F. Supp. 7; Conley v. Fidelity-Phenix Fire Ins. Co., W.D.Ark., 1952, 102 F. Supp. 474. The teachings of those cases and of others which might have been cited may be summarized fairly as follows: 1. Policy requirements of notice and proof of loss, including time limits for compliance, are valid and enforceable.
An exhaustive examination of the authorities elsewhere reveals an irreconcilable conflict as to whether such actions by an insurer after the expiration of the period for filing a proof of loss amounts to a waiver of such defenses. In my opinion the authorities which hold that disclaimer of liability on other grounds than the failure to give immediate notice of loss and to file proof of loss as stipulated in the policy coupled with a subsequent investigation of the claim after the expiration of the period for filing proof of loss does not waive those defenses represents the better doctrine and should be followed by me. Among these authorities are: Travelers' Ins. Co. of Hartford, Conn. v. Nax, 3 Cir., 142 F. 653; National City Bank v. National Security Co., 6 Cir., 58 F.2d 7; J.T. Knight Son, Inc., v. Superior Fire Ins. Co., 5 Cir., 80 F.2d 311; Conley v. Fidelity-Phenix Fire Ins. Co. of New York, D.C.W.D.Ark., 102 F. Supp. 474; Friedman v. Orient Ins. Co., 278 Mass. 596, 180 N.E. 617; Milton Ice Co. v. Travelers Indemnity Co., 320 Mass. 719, 71 N.E.2d 232; Rose v. New York Life Ins. Co., 127 Ohio St. 265, 187 N.E. 859. Waiver is the intentional relinquishment of some known right. Metcalf v. Phenix Ins. Co., 21 R.I. 307, 43 A. 541; Inventasch v. Superior Fire Ins. Co., 48 R.I. 321, 138 A. 39. Interpreting the facts in a light most favorable to the plaintiff I fail to see where they support any inference of a waiver by the defendant of the failure of the plaintiff to give immediate notice of loss and to file a sworn proof of loss.
See also American Insurance Company v. Rector, 172 Ark. 767, 290 S.W. 367. In Conley v. Fidelity-Phenix Fire Ins. Co. of New York, 102 F. Supp. 474, (U.S.D., W.D. Ark., Ft. Smith Division), it was said: "However, a failure to give notice or furnish proof of loss is waived by any conduct on the part of the insurer or its authorized agent inconsistent with the intention to enforce a strict compliance with the insurance contract in such regard.
( Bell v. Barefield (1929) supra, 219 Ala. 319 [ 122 So. 318, 319]; Herrington v. Herrington (1929) 40 Ga. App. 652 [151 S.E. 114]; Crabtree v. Maupin Seed Co. (1927) (Mo. App.) 294 S.W. 433, 435; Annely v. De Saussure (1887) 26 S.C. 497 [2 S.E. 490, 495, 4 Am.St.Rep. 725]; Newsome v. St. Paul Mercury Ins. Co. (1960) (Tex. Civ.App.) 331 S.W.2d 497; cf. Conley v. Fidelity-PhoenixFire Ins. Co. of New York (1952) 102 F. Supp. 474; Murray v. Webster (1951) supra, 256 Ala. 248 [ 54 So.2d 505, 508]; Ritson v. Atlas Assur. Co. (1930) 272 Mass. 73 [ 171 N.E. 448].) The same ruling has been applied as between a life tenant and a remainderman ( Corder v. McDougall (1932) supra, 216 Cal. 773; Board of Education v. Winding Gulf Collieries (1945) supra, 152 F.2d 382, 384 [2]; Harrison v. Pepper (1896) supra, 166 Mass. 288 [44 N.E. 222]); lessor and lessee ( Alexander v. Security-First Nat. Bank (1936) supra, 7 Cal.2d 718, 723 [3]); mortgagor and mortgagee (see Alexander v. Security-First Nat. Bank, supra; Eagle Star British Dominions v. Tadlock (1938) 22 F. Supp. 545, 547 [6]; White v. Gilman (1903) 138 Cal. 375 [ 71 P. 436]); partners ( American Cent.Ins. Co. v. Harrison (1947) (Tex. Civ.App.) 205 S.W.2d 417, 421); builder and owner ( Anderson v. Quick (1912) 163 Cal. 658, 662 [ 126 P. 871]); and vendor and vendee ( White v. Gilman, supra), subject to certain equitable considerations.
His status is thus somewhat similar to that of a life tenant; and we said in Jackson v. Jackson, 211 Ark. 547, 201 S.W.2d 218: The Jackson case is cited with approval in Coleman v. Gardner, 231 Ark. 521, 330 S.W.2d 954. An informative case on insurance of entirety property is Conley v. Fidelity-Phenix Fire Ins. Co. (U.S.D.C. Ark.), 102 F. Supp. 474. "In the absence of anything that requires it in the instrument creating the estate, or of any agreement to that effect on the part of the life tenant, we think that the life tenant is not bound to keep the premises insured for the benefit of the remainderman.
In North British Mercantile Ins. Co. v. Sciandra, 256 Ala. 409, decided in 1951, a husband recovered the full damage to a building, although the wife owned an undivided half interest in the property and was not named as an assured. See Conley v. Fidelity-Phenix Fire Ins. Co. of N. Y., 102 F. Supp. 474; 5 Appleman, Insurance Law and Practice, ss. 3361, 3363. "Greater difficulty is presented by the measurement of a joint tenant's recovery where he has insured for his own sole benefit. Since a joint tenant owns the whole estate for some purposes in the law, the courts might on that ground conceivably refuse to limit his recovery to the value of a fractional share of the estate . . . There has been some dictum indicating that the insured's recovery would be limited . . . It has been said that `whether the other joint owner has an interest in law or equity in the insurance money so collected may properly turn on the equities of the particular case.
Where a fire is incendiary, an insurer, to escape liability, must establish that the insured set or conspired to set the fire. The fact that the fire was of an incendiary origin is not alone sufficient to prove that the insured set or caused the fire to be set. Conley v. Fidelity-Phenix Fire Insurance Co., D.C., 102 F.Supp. 474; See Stone v. Union Fire Insurance Company, 106 Colo. 522, 107 P.2d 241. In Farmers' Alliance Mutual Fire Insurance Co. v. Trombly, 17 Colo.App. 513, 69 P. 74, the court stated, '. . . The fact that a man burned down her (the insured's) house constitutes no defense, unless it be shown that she was in some degree accessory to the deed. . . .'
Following the rules heretofore stated, the right of one cotenant to recover the proceeds of a policy of insurance issued to another cotenant has been denied. (Bell v. Barefield, supra, 219 Ala. 319, 122 So. 318, 319; Herrington v. Herrington, 40 Ga.App. 652, 151 S.E. 114; Crabtree v. Maupin Seed Co. (Mo.App.), 294 S.W. 433, 435; Annely v. De Saussure, 26 S.C. 497, 2 S.E. 490, 494; Newsome v. St. Paul Mercury Ins. Co. (Tex.Civ.App.), 331 S.W.2d 497; cf. Conley v. Fidelity-Phoenix Fire Ins. Co. of New York, D.C. 102 F.Supp. 474; Murray v. Webster, supra, 256 Ala. 248, 54 So.2d 505, 508; Ritson v. Atlas Assur. Co., 272 Mass. 73, 171 N.E. 448.) The same ruling has been applied as between a life tenant and a remainderman (Corder v. McDougall, supra, 216 Cal. 773, 16 P.2d 740; Board of Education v. Winding Gulf Collieries, supra, Cir., 152 F.2d 382, 384; Harrison v. Pepper, supra, 166 Mass. 288, 44 N.E. 222, 33 L.R.A. 239); lessor and lessee (Alexander v. Security-First Nat. Bank, supra, 7 Cal.2d 718, 723, 62 P.2d 735); mortgagor and mortgagee (see Alexander v. Security-First Nat. Bank, supra, 7 Cal.2d 718, 723, 62 P.2d 735; Eagle Star & British Dominions v. Tadlock, D.C., 22 F.Supp. 545, 547; White v. Gilman, 138 Cal. 375, 71 P. 436); partners (American Cent. Ins. Co. v. Harrison, [Tex.Civ.App.] 205 S.W.2d 417, 421); builder and owner (Anderson v. Quick, 163 Cal. 658, 662, 126 P. 871); and vendor and vendee (Wh