100 Ark. 212 | Ark. | 1911
(after stating the facts). 1. The appellant contends that the court erred in permitting appellee to amend his complaint after the evidence was adduced so as to allege a waiver of the proof of loss.
The court did not err in allowing the amendment. The appellee had, without objection on the part of appellant, introduced evidence tending to show a waiver on the part of appellant of the proof of loss, and appellant introduced evidence in rebuttal.
The amendment did not change the issue, and, even if it had, it was within the discretion of the court to permit it, since the parties had virtually in advance consented to the change by the evidence adduced. Burke v. Snell, 42 Ark. 57-60; Hanks v. Harris, 29 Ark. 323; McMurray v. Boyd, 58 Ark. 504, 506; Shattuck v. Byford, 62 Ark. 431; Bank of Malvern v. Burton, 67 Ark. 426. Under the liberal statutory provisions in regard to amendments, the amendment was proper, and appellant could not have been misled by it. Sections, 6140-6145, Kirby’s Digest. The amendment was well within the general issue raised by the pleadings, which was the liability of appellant. Where a local agent has power to effect insurance, countersign policies and collect premiums, he has also prima facie power to waive proof of loss, and evidence of such waiver is admissible under an allegation that they were furnished. Nickell v. Phoenix Ins. Co. 144 Mo. 420; 2 May on Ins. § 589.
2. The appellant also contends that the agent Reynolds had no power to waive the proof of loss, he being only a local special agent. But the agent, Reynolds, himself testified that “he could issue policies and approve the same for persons desiring insurance.” There was also evidence on behalf of appellee that tended to prove that Reynolds assumed to have authority to make the adjustment of the loss. Reynolds was present when this testimony was introduced, and neither he nor ahy one else for the company pretended to deny that he had such authority.
An agent having authority to receive and pass upon applications for insurance, to issue policies, receive premiums, and make adjustment of losses certainly has the power to waive the condition in the policy as to proof of loss. German Ins. Co. v. Gibson, 53 Ark. 494; German-American Ins. Co. v. Humphrey, 62 Ark. 348; Phoenix Ins. Co. v. Public Parks Imp. Co., 63 Ark. 188; Greenwich Ins. Co. v. State, 74 Ark. 72, 79; Phoenix Ins. Co. v. Munger, 49 Kan. 178. See also McGuire v. Hartford Ins. Co., 40 N. Y. Supp. 300. See also Nickell v. Ins. Co., 144 Mo. 420.
3. What we have already said in regard to amendments disposes of the contention of appellant that the court erred in permitting appellee to testify that the agent Reynolds had knowledge of the additional insurance at the time he issued the policy to appellee, there being no allegation in the complaint that the agent had such knowledge. There being no objection to the evidence, the complaint could be considered as amended to conform to it if such an allegation were necessary. Hanks v. Harris, 29 Ark. 323; Healy v. Conner, 40 Ark. 352.
4. The appellant was not prejudiced by the refusal of the court to permit it to introduce in evidence the policy of appellee with the Des Moines Insurance Company. The appellee admitted that he had insurance on the same property in that company, and the fact was not controverted at all by him.
5. The contention that the judgment should be reduced in any event in the sum of $50 can not be considered here, as it was not made in the court below.
The judgment is therefore affirmed.