Scottish Union & National Ins. Co. v. Wilson

• Decision Date: 01 June 1931
• Docket Number: No. 13.,13.
• Parties: SCOTTISH UNION & NATIONAL INS. CO. v. WILSON et al.
• Court: Arkansas Supreme Court

39 S.W.2d 303

SCOTTISH UNION & NATIONAL INS. CO. v. WILSON et al.

No. 13.

Supreme Court of Arkansas.

June 1, 1931.

Appeal from Circuit Court, Conway County; J. T. Bullock, Judge.

Suit by E. J. Wilson and others against the Scottish Union & National Insurance Company. From a judgment in favor of plaintiffs, defendant appeals.

Affirmed.

A. H. Scott, of Little Rock, for appellant.

Edward Gordon, of Morrilton, for appellees.

MEHAFFY, J.

Appellees are the only heirs at law of B. F. Wilson, deceased, and in their complaint alleged that they are the owners of the property involved in this suit. At the death of their father, the property was left to their mother for life, and the remainder to appellees. The mother died in January, 1928.

The property insured was a dwelling house on lots 8 and 9 in block 6, Irving's addition to the city of Morrilton. On the 14th day of February, 1930, the property was insured by appellant in the sum of $800.

One of the clauses in the policy was as follows: "Permission is given for the premises to be vacant or unoccupied for a period not to exceed 60 days either in any one policy year or consecutively at any one time."

The property was totally destroyed by fire on April 19, 1930. The building became vacant February 22, 1930. Appellees had executed a mortgage to the National Savings & Loan Association, and the appellant filed a demurrer to the complaint stating that the National Savings & Loan Association was a necessary party, and thereafter the appellees filed an amendment to their complaint making the National Savings & Loan Association a party.

The appellant admitted issuing the policy and admitted that permission was given for the premises to remain vacant or unoccupied for a period of 60 days, but alleged that a rider had been attached to the policy under the terms of which appellant would not be liable for exceeding two-thirds of the amount of damage if the property was destroyed by fire during such vacancy. It therefore contends that it is not liable, but that it was liable for only two-thirds of the $800. The policy contained a mortgage clause payable to the National Savings & Loan Association.

There is no dispute about the property having been destroyed by fire, and it had not been vacant 60 days when so destroyed.

Appellant insists that the judgment should be reversed because the suit was originally begun by the heirs of B. F. Wilson, and the insurance policy was issued in the name of the estate of B. F. Wilson. It is insisted that the suit should have been brought by the administratrix and not by the heirs. The administratrix was made a party, and no objection was made by appellant to making the administratrix a party, and no objection was made in the lower court on account of any defect of parties or improper parties.

Our statute provides: "The defendant may demur to the complaint where it appears on its face, either: * * * That the plaintiff has not legal capacity to sue." Crawford & Moses' Dig. § 1189.

The policy having been issued in the name of the estate, this defect, if it was a defect, appeared on the face of the complaint, but, if it did not appear on the face of the complaint, the statute also provides: "When any of the matters enumerated in section 1189 do not appear upon the face of the complaint, the objection may be taken by answer. If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court over the subject of the action, and the objection that the complaint does not state facts sufficient to constitute a cause of action." Crawford & Moses' Dig. § 1192.

The appellant filed a demurrer to the complaint alleging that the property was mortgaged and that the National Savings & Loan Association was a proper party. There was no suggestion in this demurrer or in the answer that the appellees were not proper parties or that there was any defect other than that pointed out by the demurrer that the National Savings & Loan Association was a necessary party.

The statute provides: "The demurrer shall distinctly specify the grounds of objection to the complaint; unless it does so, it shall be regarded as objecting only that the complaint does not state facts sufficient to constitute a cause of action." Crawford & Moses' Dig. § 1190.

It therefore does not appear that either in appellant's demurrer or answer there was any defect of parties, except that the mortgagee should be made a party.

The objection that appellees did not have legal capacity to sue must be made in the manner provided in the statute. Gaither Coal Company v. Le Clerch, 182 Ark. 466, 31 S.W. (2d) 750; Murphy v. Myar, 95 Ark. 33, 128 S. W. 359, Ann. Cas. 1912A, 573; Love v. Cahn, 93 Ark. 215, 124 S. W. 259; Ry. Co. v. Watson, 97 Ark. 560, 134 S. W. 949; Texarkana Gas & Electric Co. v. Orr, 59 Ark. 215, 27 S. W. 66, 43 Am. St. Rep. 30.

The objection, not having been made in the manner provided by statute, was waived. The...