Continental Cas. Co. v. Toler

STATEMENT BY THE COURT.

This is an action for a writ of prohibition. Petitioner, appellant, a foreign insurance company, seeks by this action to prevent the circuit court of Grant County, Arkansas, from entertaining jurisdiction of a suit to recover indemnity for disability caused by bodily disease under a policy of insurance issued by said petitioner to Oscar L. Floyd.

The policy of insurance upon which the suit in Grant County is based insured the plaintiff, Oscar L. Floyd, among other things, against total disability caused by bodily disease. It also afforded indemnity against accidental bodily injury, and, in addition, provided indemnity for accidental death. Floyd, the insured, as plaintiff, a resident of Grant County, filed suit against the petitioner, appellant, in the circuit court of Grant County, seeking recovery for gross damages for breach of the contract. A summons was issued upon the filing of the complaint against the insurance company directed to the sheriff of Pulaski County, who served same in Pulaski County upon the Insurance Commissioner of Arkansas, the agent designated for service of process by the defendant, continental Casualty Company, in compliance with the statute, 6063, Crawford Moses' Digest. The casualty company appeared specially and filed a motion to quash the service of summons, insisting that service on the insurance company in Pulaski County did not give the circuit court of Grant County jurisdiction of it in the suit brought by Floyd. Also objected to the jurisdiction of the court to determine the Floyd suit, complaining it was not an action where the venue was fixed in the county of the residence of the insured under the statute, 6150-51, Crawford Moses' Digest, as amended by 5 of act 493 of 1921, digested as 5975e of Castle's Supp., 1927, to Crawford Moses' Digest. It was asserted by the petitioner that the suit filed by Floyd was not an action on or one arising out of a policy of insurance on the life of Floyd, but was on an action on or arising out of a policy on the health of Floyd. Petitioner also alleged there was no statute permitting a suit on a health insurance policy to be maintained against the insurer in the county of the residence of the insured, and denied that, in the absence of the statute, Floyd was entitled to maintain the suit filed by him against it in the circuit court of Grant County.

It was also alleged by petitioner, and conceded by respondents, that the chief officer of the petitioner does not reside in Grant County, nor does the petitioner have a branch office or other place of business or any business, property nor debts owing it in Grant County. It was also admitted by respondents that the petitioner could not be served with process in Grant County as it could not be found therein.

The judge of the circuit court found the suit filed by Floyd against the Casualty Company was an action on or one arising out of a policy of insurance on the life of Floyd, and, although the contract of insurance sued on paid indemnity for disability caused by bodily disease or accidental injury in addition to indemnity for loss of life by accidental means, still it retained its identity as a policy of insurance on the life of a human being; and found further that suit could be maintained in the county of the residence of the insured under the statute, 6150-51, Crawford Moses' Digest, as amended by 5 of act 493 of 1921, 5975e, Castle's Supp., 1927, to Crawford Moses' Digest; and overruled the motion to quash the service.

The appellant company then filed a petition in the Supreme Court during vacation asking a temporary order staying proceedings in the suit pending in the circuit court, which was granted. The writ was returnable to the court after the expiration of the vacation and continued in force until the final hearing of the action. (after stating the facts). Petitioner insists that the action of the circuit court in overruling the motion to quash service of summons and retaining jurisdiction of the suit of Floyd against it was erroneous.

We do not agree with this contention, however, holding that insured was entitled to maintain the action filed against the petitioner in the circuit court of Grant County, Arkansas, the county of the residence of insured under the provisions of the statute, 6150-51, Crawford Moses' Digest, as amended by 5 of act 493 of 1921; 5975e, Castle's Supp., 1927, to Crawford Moses' Digest.

The policy of insurance sued on was a policy of insurance on the life of a human being, as well as a policy of accident insurance within the meaning of said statute, 6150-51, Crawford Moses' Digest, etc., which expressly allows the beneficiary or his assigns to maintain an action against the insurance company that has taken the risk in the county of the residence of the party whose life was insured, or to maintain an action against such accident insurance company that had taken the risk in the county of the residence of the party insured or in the county where the accident occurred, and that a service upon the Insurance Commissioner as prescribed by law returnable to the court having jurisdiction under this statute shall be good service. Travelers' Protective Ass'n v. Gilbert, 101 F. 846.

The venue statutes relate to both life and accident insurance, and the fact the policy is one providing indemnity against loss of life by accident as well as accidental injury can make no difference whether it be considered one or two policies, since the statutes expressly provide where the suit should be brought in either case, and an action for insurance against injury by disease in the same policy necessarily takes the same venue.

The court did not err in so holding and in overruling the motion to quash service and in retaining jurisdiction; and the petition will be denied. It is so ordered.

SMITH and BUTLER, JJ., dissent.