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JACKSON v. M.F.A. MUTUAL INSURANCE COMPANY

September 19, 1958

H.P. JACKSON, BILLIE PHILLIPS AND CLAUDE PHILLIPS, PLAINTIFFS,
v.
M.F.A. MUTUAL INSURANCE COMPANY, A CORPORATION, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, District Judge.

Statement

This case was tried to the court without the intervention of a jury on September 11, 1958, and the court, having considered all of the pleadings, testimony, and exhibits thereto, now makes and files its formal Findings of Fact and Conclusions of Law, separately stated.

Findings of Fact

1.

The plaintiffs were at the commencement of this action citizens of Arkansas residing in the Harrison Division of the Western District of Arkansas.

The defendant is a corporation organized under the laws of the State of Missouri and authorized to do business in the State of Arkansas as an insurance company.

The action was removed to this court on May 13, 1958, and the amount in controversy, exclusive of interest and costs, is in excess of $3,000.

2.

On March 15, 1955, the defendant issued its fire insurance policy covering property shown to be located at 212 Cherry Street in Berryville, Arkansas, to Lloyd and Berry Jean Jennings. Through endorsement the policy vested in the plaintiffs, who had acquired the insured property. The policy was renewed on March 15, 1957, for an additional year. On December 3, 1957, while the policy was in full force and effect, the property burned and was totally destroyed. The policy contained the following provision:

    "Conditions suspending or restricting insurance.
  Unless otherwise provided in writing added hereto
  this company shall not be liable for loss occurring
  (a) while the hazard is increased by any means within
  the control or knowledge of the insured. * * *."

It also contained a provision, set out under the title of "Waiver provisions", that no permission or waiver affecting the policy should be valid unless expressed in writing "added thereto."

3.

The policy showed the insured building was to be used as a poultry house, and it was so occupied until March 27, 1957. Sometime prior to this date the plaintiffs had completed negotiations with one John Holland to lease the premises to him for use as a pallet manufacturing factory, beginning on March 27, 1957. On March 26, the day before the lessee was entitled to possession, H.P. Jackson, one of the plaintiffs, went to the defendant's agent, Eugene Pinkley, to pay the renewal premium and advised him of the change to be made. Jackson knew that there might be an increase in the premium. Pinkley, however, advised Jackson that if anything came up at a later date, he, Pinkley, would "take care of it." Under the terms of the lease Holland took possession and engaged in a manufacturing business which continued until the fire. This ...


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