London & Lancashire Insurance Company, Ltd. v. Payne

• Decision Date: 16 December 1929
• Docket Number: 44
• Citation: 22 S.W.2d 165,180 Ark. 638
• Parties: LONDON & LANCASHIRE INSURANCE COMPANY, LTD., v. PAYNE
• Court: Arkansas Supreme Court

22 S.W.2d 165

180 Ark. 638

LONDON & LANCASHIRE INSURANCE COMPANY, LTD., v. PAYNE

No. 44

Supreme Court of Arkansas

December 16, 1929

Appeal from Union Chancery Court, Second Division; George M. LeCroy Chancellor; affirmed.

STATEMENT OF FACTS.

On October 2, 1926, Rosa L. Payne brought suit in equity against Grover C. Payne to recover $ 100 per month for the separate maintenance and support of herself and the minor children of her husband and herself. She alleges that her husband deserted her without cause, and left her and their three minor children without means of support.

The London & Lancashire Insurance Company, Ltd., was summoned as garnishee. The insurance company was carrying on a fire insurance business in the State of Arkansas, and the statutory requirements as to the issue of garnishments were complied with. It was alleged that the garnishee, on the 3d day of February, 1926, issued an insurance policy to Grover C. Payne in the sum of $ 2,450, and that the house had been destroyed by fire. That proof of loss was waived by the insurance company, and the full amount of the policy was now due.

Grover C. Payne had become a nonresident of the State by the time the suit was commenced, and constructive service was had upon him as a nonresident in the manner prescribed by statute. It was also shown that the local agent of the insurance company who issued the policy on the dwelling-house of Grover C Payne was duly notified of the destruction of the property by fire within the time prescribed by the policy, and he said that no proof of loss would be required. The agent said that the adjuster of the insurance company had already inspected the property. The property which was destroyed by fire was reasonably worth $ 3,000. The dwelling-house and a Delco lighting plant and a garage were all insured under the terms of the policy in the aggregate sum of $ 2,300, and were destroyed by fire.

The plaintiff also proved that her husband left her without any means of support, and that the sum of $ 100 per month would be necessary to support her and her children from the time he left her. She testified that she had received nothing from her husband since he left her in 1926.

The chancellor found the issues in favor of the plaintiff, and has specifically found that she was entitled to $ 100 per month for the support of herself and dependent children, and that she was entitled to recover said sum from the date of the filing of her complaint on the 2d day of October, 1926 and that the monthly payments should continue until the property seized by garnishment was exhausted. The chancellor further found that the garnishee was indebted to the defendant, Grover C. Payne, in the sum of $ 2,300. It was decreed by the court that the plaintiff recover from the defendant the sum of $ 100 per month for the maintenance and support of herself and her dependent children, that said monthly allowance commence on October 2, 1926, and continue for a period of 23 months, until the sum of $ 2,300 seized by the garnishment had been exhausted, and that the plaintiff have judgment against the garnishee for said sum of $ 2,300. The decree was entered of record on February 27, 1929. The garnishee has appealed.

Decree affirmed.

Powell Smead & Knox, for appellant.

Gus W. Jones, for appellee.

OPINION

HART, C. J., (after stating the facts).

It is first contended that the decree should be reversed because the proof of loss was not filed within the time prescribed by the policy. The compliance with this provision of the policy was expressly waived by the local agent of the insurance company who issued the policy and delivered it to the insured. The local agent had authority to issue fire insurance, write and deliver policies, and collect premiums, and to notify the insurance company of loss. Having been clothed with these powers, he had prima facie authority to waive presentation of proof of loss. National Union Fire Insurance Co. v. Wright, 163 Ark. 42, 257 S.W. 753; Liverpool, London & Globe Ins. Co. v. Payton, 128 Ark. 528, 194 S.W. 503; National Union Fire Ins. Co. v. Crabtree, 151 Ark. 561, 237 S.W. 97; and Citizens' Fire Ins. Co. v. Lord, 100 Ark. 212, 139 S.W. 1114.

It is next insisted that the insurance company was not subject to garnishment in this action, because the money was due by it to Grover C. Payne under the terms of the policy, who was a nonresident of the State at the time garnishment was issued and served upon the insurance company. The insurance company was transacting business in this State, and had complied with the laws thereof permitting foreign insurance companies to do business in the State. This court has held that a debt due from a foreign corporation to a nonresident, who is only constructively served with process, is subject to garnishment in a State in which the corporation does business, although the debt is not payable in that State, and did not...