New Amsterdam Casualty Co. v. Detroit Fidelity & Surety Co.

• Decision Date: 27 March 1933
• Docket Number: 4-2931
• Citation: 58 S.W.2d 418,187 Ark. 97
• Parties: NEW AMSTERDAM CASUALTY COMPANY v. DETROIT FIDELITY & SURETY COMPANY
• Court: Arkansas Supreme Court

58 S.W.2d 418

187 Ark. 97

NEW AMSTERDAM CASUALTY COMPANY v. DETROIT FIDELITY & SURETY COMPANY

4-2931

Supreme Court of Arkansas

March 27, 1933

Appeal from Pulaski Circuit Court, Third Division; Marvin Harris Judge; affirmed.

Judgment affirmed.

Buzbee Pugh & Harrison, for appellant.

Horace Chamberlin, for appellee.

OPINION

MEHAFFY, J.

This action was instituted by appellant to recover from appellee surety company for premiums due upon liability policies issued to the contractor, who had given a bond to the Highway Commission with the appellee as surety on said bond.

The Yellville Construction Company entered into a contract with the State Highway Commission for the construction of approximately twelve miles of grading and drainage on one of the Arkansas highways. On the same day it entered into the contract with the Highway Commission, it made a bond in conformity with act 368 of the Acts of the General Assembly for the year 1929, said bond being executed by the Yellville Construction Company as principal, and by the Detroit Fidelity & Surety Company as surety. By the terms of the bond, the surety company guaranteed the performance of the contract and guaranteed the payment of all claims for labor, materials, supplies, etc. Under the contract and laws, the Yellville Construction Company was required to enter into contracts for the protection against claims for personal injury or property damage during the prosecution of the work.

The appellant issued two policies known as liability insurance policies, protecting the Construction Company against claims for damages to persons or property sustained during the construction work. These policies were in force during the entire prosecution of the work under the contract with the Highway Commission.

The appellant issued its policies to the construction company for certain premiums. It is alleged that the unpaid premium due on one policy is $ 2,527.01, and the unpaid premium due on the other policy is $ 402.65.

The complaint alleges that said policies of insurance were required to be carried by the Construction Company, and that the premiums therefor are within the protection of the bond of the Detroit Fidelity & Surety Company, and that said surety company and construction company are liable to appellant for said sums of money, with interest.

A paragraph of the bond given by the Detroit Fidelity & Surety Company is as follows: "Now, therefore, if the above bounden Yellville Construction Company shall in all things stand and abide by and well and truly observe, do, keep and perform all and singular the terms, covenants, guarantees and agreements in said contract to be observed, kept, done and performed, and each of them, at the time and in the manner and form therein specified, and shall do and perform all the labor and work and shall furnish all the material as specified in said contract and in strict accordance with the terms of said contract and the plans and specifications thereto attached and made a part thereof, and shall indemnify and save harmless said Arkansas State Highway Commission against any loss or damage whatever kind and character, arising or occasioned by deeds of negligence of said principal, his agents, servants and employees, in the prosecution of the work or by reason of improper safeguards or incomplete protection to the work and shall pay all bills for material, labor and supplies entered into contingent and incident to the construction of said work, and shall complete said work within the time specified in said contract, then this obligation shall be null and void, otherwise to remain in full force and effect."

The last paragraph in the bond reads as follows: "Unpaid claims for material, labor...