Neimeyer v. Claiborne

Wood, J., (after stating the facts). First. One of the stipulations of the policy was: “If there'is or shall be other prior, concurrent or subsequent insurance (whether valid or not) on said property, or any part thereof, without the company’s written consent indorsed hereon, etc., this policy shall be held null and void.” Another provision was: “By the acceptance of this policy, the assured covenants that the application hereof and the bylaws on the back of this policy shall be and form a part hereof, and a warranty by the assured, and the company shall not be bound by any act or statement made by an agent or solicitor unless inserted in this policy.” Appellant contends that the allegations of the complaint show affirmatively that appellee had no cause of action under the above provisions. True, the allegations of the complaint show forfeitures of the policy under the stipulations mentioned supra, but the allegations also show that there was a waiver of these forfeitures according to the doctrine of this court recently announced by Judge Riddick in Arkansas Mut. Fire Ins. Co. v. Claiborne, 82 Ark. 150, as follows: “Though the conduct of the insurer may not have misled the insured to his prejudice, or into an altered position, yet if, after knowledge of all the facts, its conduct has been such as to reasonably imply a purpose not to insist upon a forfeiture, the law, leaning against forfeitures, will apply the peculiar doctrine of waiver, invented probably to prevent them,- and will hold the insurer irrevocably bound by an election to treat the contract as if no cause of forfeiture had occurred.” The facts set up in the allegations of the complaint clearly constituted a waiver of the forfeitures. The law of waiver cannot be abolished by contract. Therefore the stipulation that “the company shall not be bound by any act or statement made by an agent or solicitor unless inserted in this policy” can not avail to effect a forfeiture where the facts are sufficient under well recognized rules of'law to establish a waiver. Such is the condition here. Alabama State Mut. Ins. Co. v. Long, 123 Ala. 667, S. C. 49 Cent. L. J. 205, and cases cited; Phoenix Ins. Co. v. Public Parks Amusement Co., 63 Ark. 187; People's Fire Ins. Association of Arkansas v. Goyne, 79 Ark. 315. Second. The appellant contends that the complaint does not allege a cause of action against him on the bond. The complaint alleges: “That, as a prerequisite to its right to do business in the State of Arkansas, the defendant Security Mutual Insurance Company gave a bond to the State of Arkansas in the, sum of twenty thousand ($20,000)“ dollars, conditioned for the prompt payment of all claims arising and accruing to any person during the term of said bond, by virtue of any policj issued by said defendant upon any property situated in this State, which bond was in full force and effect on and all times after the 7th day of April, 1903, and was signed by the defendants Alex C. Hull, Damon Clarke, Geo. B. Allis and Chas. Niemeyer, sureties for the Security Mutual Insurance Company.” As this was a suit against appellant on the bond, the breach of the bond was the foundation of the action, and the rules of good pleading under the statute (section 6128, Kirby’s Digest) required that the original or a'copy of the bond be filed as a part of the complaint, if within the power of the party plaintiff to produce it; and, if not, that the reason thereof be stated. The bleach of the bond consisted in the failure of the insurance company, the principal, and appellant, the security, to pay the amount of the loss sustained, which by the terms of the policy and the bond they were required to do. We are of the opinion that the complaint sufficiently set forth a cause of action on the policy and for breach of the bond. See Euper v. State, 85 Ark. 223. Appellant contends that the allegations of the complaint, when read in connection with the law (section 4339, Kirby’s Digest), show that the bond had expired. But not so. The loss under the policy and the liability for such loss on the bond is stated in the allegations above set forth, which show that a bond was executed by appellant, conditioned for the payment of all claims arising on the policy during the term of the bond, and that the bond was in “full force and effect on and all times after the 7'th day of April, 1903.” If the complaint was defective in not setting forth the original bond, or a copy thereof, or in not stating the reasons for failing to do so, the defect was one of form, not substance, -and could have been remedied by a rule of court, on motion of appellant. See Nordman v. Craighead, 27 Ark. 369; Egan v. Tewksbury, 32 Ark. 43; State v. Aetna Fire Ins. Co., 66 Ark. 480. The allegations of the complaint were sufficient to admit evidence of a bond executed under section 4339 of Kirby’s Digest. Profert of the bond would have shown whether or not it was executed under that section, and whether or not it had been renewed as-the statute requires, and was in full force and-effect when the loss occurred under the policy! The' allegation that the bond was “in full force and effect on and at all times after the 7th day of April, 1903,” was sufficient to admit evidence that the bond was in full force and effect on the 25th day of February, 1905, the day it is alleged the loss occurred. If the bond,when presented in evidence, had shown that it* was not in full force and effect, then there would have been a failure of the proof to meet the allegations of the complaint, but the complaint would still be good. “Where a judgment is entered by default, it will be presumed that whatever proofs were necessary to support it were duly presented and taken.” 23 Cyc. 763. The only question here is, were the allegations of the complaint sufficient to authorize, the judgment? Benton v. Holliday, 44 Ark. 56; Euper v. State, 85 Ark. 223. Third. The appellant contends that the Garland Circuit Court had no jurisdiction over him because he neither resided nor was summoned in that county. Section 4376 of’ Kirby’s Digest provides: “That the sureties on the bond of an insutance company may be made parties defendant, and final judgment rendered against them at the same time and in like manner as ■ against the company.” Section 4377 of Kirby’s Digest expressly authorizes a suit upon a fire insurance policy to be brought in the county where the loss occurred. It is not contended that the Garland Circuit Court did not have jurisdiction of the insurance company, the principal defendant, and of the -subject-matter. The loss occurred in Garland County, and the suit was brought there. Under the above sections, the suit was properly brought ag'ainst appellant in Garland County, and the circuit court of that county had jurisdiction of his person. This special statute applies to suits against sureties on the bond of fire insurance companies, and not section 6072, Kirby’s Digest, which applies to other actions. The sureties under the above statute may be made parties defendant in the suit against the principal, and ■service had upon them in any county in which the principal may be served, i. e., in any county of the State. The words “in like manner” evidently refers to the process or procedure for bringing the defendants, sureties, into court, as well as any and all other procedure necessary and incident to obtaining final judgment against them. Affirm.