Firemen's Insurance Company v. Simmons
| Decision Date | 25 November 1929 |
| Docket Number | 11 |
| Citation | 22 S.W.2d 45,180 Ark. 500 |
| Parties | FIREMEN'S INSURANCE COMPANY v. SIMMONS |
| Court | Arkansas Supreme Court |
Appeal from Pope Circuit Court; Richard M. Mann, Judge on exchange affirmed.
Judgment affirmed.
McMillen & Scott, for appellant.
Marveline Osborne, Robert Bailey and Hays, Priddy & Rorex, for appellee.
On November 13, 1928, appellee, Simmons, applied to the Pope County Real Estate Company, general agents for a large number of fire insurance companies, for a policy of fire insurance on his store building and fixtures, located about fourteen miles north of Russellville. Mr. Luck, acting for the Pope County Real Estate Company, issued and delivered to him on the same date a policy in appellee company, the Bankers' & Shippers' Insurance Company, covering $ 600 on the building and $ 200 on the fixtures, for which the premium was paid by Simmons in cash. The issuance of this policy was reported by the agency in Russellville to the company's general agents in Memphis, who directed a cancellation of the risk. Just when this was done is not shown. However, this policy was not immediately canceled by Mr. Luck, who attended to the matter, but on December 20, without the knowledge of the insured, he issued another policy in appellant company covering this same risk. The insured had not directed him in what company to place the risk, and he wrote it, in accordance with his custom, in any company he wished--one he thought would carry the risk. Luck had not notified Simmons that the Bankers' & Shippers' had instructed him to cancel the policy, or that he had done so or that he had rewritten it in appellant.
A fire occurred on December 21, 1928, which destroyed the property insured. Notice of loss was given both companies by Simmons, both denied liability, and this suit followed. It was tried before the court sitting as a jury, which resulted in a judgment against appellant for the full amount, with penalty and attorney's fee. The court found for appellee Bankers' & Shippers' and dismissed the complaint as to it. The Firemen's Insurance Company has appealed from the judgment against it, and Simmons has taken a cross-appeal as against the Bankers' & Shippers' Insurance Company.
It is first argued by appellant that the complaint failed to state a cause of action against it, and that its demurrer should therefore have been sustained. The complaint was directed against both companies, a kind of double-barreled action, with the hope that, if one escaped liability, the other might not. And while it is true the complaint, as to appellant, alleged that its policy was issued by the agent "without the knowledge or consent of the plaintiff, who still had charge of the first policy," we do not think this allegation had the effect of negativing a cause of action against appellant. It was alleged that the policy was issued covering the risk, and judgment was prayed against it.
Neither was appellant prejudiced by being sued jointly with the Bankers' & Shippers'. If it is liable for the loss sustained, and the other company is not, as the circuit court held, certainly appellant could not complain because another not liable was jointly made a defendant with it.
The real question in the case is whether appellant is liable at all under the facts and circumstances developed. The policy of the Bankers' & Shippers' contained a clause providing that the company might cancel the policy on five days' notice to the insured. This notice was not given. But we have many times held that this clause is for the benefit of the insured, and may be waived by him and that the agent of the company may also be the agent of the insured to accept notice of cancellation, and keep the property insured by writing it in another company. Phoenix Ins. Co. v. State, 76 Ark. 180, 88 S.W. 917, 6 Ann. Cas. 440; Allemania Fire Ins. Co. v. Zweng, 127 Ark. 141, 191 S.W. 903; Insurance Underwriters' Agency v. Pride, 173 Ark. 1016, 294 S.W. 19; Home Fire Ins. Co. v. Parker, 177 Ark. 678, 7 S.W.2d 324. In most of the cases coming before this court, where the rule above stated has been announced and followed, there appears to have been an agreement between the insured and the agent that the agent would keep the property insured, and this agreement may be either express or implied from the...
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