Opinion
No. 37815.
February 26, 1951.
1. Insurance — trial — conflicting evidence.
When there is direct and believable evidence that a verbal applicant for a fire insurance policy told the insurance agent at the time that there was other insurance on the property, a peremptory charge for the defendant insurance company on that issue is properly refused.
2. Insurance — waiver — provision of policy prohibiting other insurance.
When a local agent of a fire insurance company is furnished by it with blank policies to be filled up, countersigned and issued by him, he has all the powers of a general agent, and when he issues a fire policy after being informed that there was other insurance on the property, he effectively waived a clause therein that the policy would be void if other insurance existed.
Headnotes as approved by Arrington, C.
APPEAL from the circuit court of Pearl River County; J.C. SHIVERS, Judge.
Wallace, Greaves Wallace, for appellant.
I. The first specification of error complains of the action of the trial court in denying the peremptory instruction requested by the defendant-appellant Liverpool London Globe Ins. Co. v. Sorsby, 60 Miss. 302; Interstate Fire Ins. Co. v. Nelson, 105 Miss. 437, 62 So. 425; Scottish Union and National Ins. Co. v. Warren Gee Lbr. Co., 118 Miss. 740, 80 So. 9; National Union Fire Ins. Co. v. Provine, 148 Miss. 659, 114 So. 730.
A. The holder of a policy of fire insurance, who has possession thereof for a long time before loss is bound by its terms, though she did not read it; and if an agent made a material or controlling error in the policy, the assured, by retaining the policy without any attempt to correct the mistake, if any were made, ratified, confirmed and adopted the policy as written. Home Mutual Fire Ins. Co. v. Pittman, 111 Miss. 420, 71 So. 739; Springfield Fire Marine Ins. Co. v. Nix, 162 Miss. 669, 139 So. 598; World Fire Marine Ins. Co., et al. v. King, et al., 187 Miss. 699, 191 So. 665; National Union Fire Ins. Co. v. Provine, 148 Miss. 659, 114 So. 730; Camden Fire Ins. Co. v. R.L. McNair, 140 So. 874; Germania Life Ins. Co. v. Bouldin, 100 Miss. 660, 56 So. 609.
B. While an underwriting agent may waive conditions of a policy of insurance before it is issued or at the time it is issued, he is without power to waive any conditions of the policy after the policy is issued except in the manner provided in the policy. St. Paul Mercury Indemnity Co. v. Ritchie, 190 Miss. 8, 198 So. 741; Christian Brough Co. v. St. Paul Fire Marine Ins. Co., 5 Fed. 2d 489; Travelers Fire Ins. Co. v. Prince, 169 Miss. 531, 152 So. 889; American Cent. Ins. Co. v. Antram, et al., 38 So. 627; C.C. Mengel Bro. Co. v. Handy Chocolate Co., 10 F.2d 293; 67 C.J. p. 306, Sec. 7; 56 Am.Jur. p. 102, Sec. 2.
II. The second specification of error complains of the action of the trial court in denying defendant-appellant's motion for a new trial, grounds II and III being as follows:
"Ground II — The evidence is wholly insufficient to sustain the verdict rendered by the jury."
"Ground III — The verdict rendered by the jury is against the overwhelming weight of the evidence." St. Paul Mercury Indemnity Co. v. Ritchie, 190 Miss. 8, 198 So. 741; Fore v. Illinois Cent. R. Co., 172 Miss. 451, 150 So. 903, overruling suggestion of error, 159 So. 557.
III. The third specification of error complains of the action of the trial court in granting plaintiff-appellee's requested instruction No. 1, in words as follows: "The court instructs the jury for the plaintiff that if you believe from a preponderance of the evidence that the defendant, Buffalo Insurance Company, through its agent, Lonnie Smith, was informed that there was other insurance in the amount of $1000.00 on said dwelling house, and having been so informed issued its said policy for $2,000 on said dwelling house, then it is your sworn duty to find for the plaintiff and assess her damages in the sum of $2000.00 plus interest at the rate of six per cent per annum from August 16, 1948, to date." St. Paul Mercury Indemnity Co. v. Ritchie, 190 Miss. 8, 198 So. 741.
Williams Williams, for appellee.
I. Answer to appellant's point I. Liverpool London Globe Ins. Co. v. Delaney, 190 Miss. 404, 200 So. 440; American Fire Ins. Co. v. First National Bank, 73 Miss. 469, 18 So. 931; Western Assurance Co. v. Phelps, 77 Miss. 625, 27 So. 745; Liverpool London Globe Ins. Co. v. Sheffy, 71 Miss. 919, 16 So. 307; Equitable Fire Ins. Co. v. Alexander, 12 So. 25; Home Ins. Co. of New York v. Northington, 23 So.2d 537; Aetna Ins. Co. v. Smith-McKinnon Son, 117 Miss. 327, 78 So. 289; New Orleans Ins. Ass'n. v. Holberg, et al., 64 Miss. 51, 8 So. 175; Mississippi Digest, under Title, Appeal and Error, Key No. 999-1002.
II. Answer to appellant's point II that the verdict returned by the jury is against the overwhelming weight of the evidence.
III. Answer to appellant's point III that the trial court erred in granting appellee's requested instruction No. 1.
IV. Conclusion. We submit that the evidence shows without dispute that appellee obtained and entered into a valid insurance contract with appellant; that she paid the consideration charged for said policy by appellant; no claim was made that the house was over-insured, but it was admittedly worth $3,000.00; the appellee has lost her home by fire; appellant had notice or knowledge of the additional insurance at the time it issued the policy sued on herein; and justice has been done all.
Rule No. 11 of this Court is therefore applicable, which we quote in full as follows: "Rule 11. — No Reversal for Harmless Error. No judgment shall be reversed on the ground of misdirection to the jury, or the improper admission or exclusion of evidence, or for error as to the matter of pleading or procedure, unless it shall affirmatively appear from the whole record, that such judgment has resulted in a miscarriage of justice."
We, therefore, respectfully submit that the case should be affirmed and that in entering the judgment the Clerk should include interest at six per cent per annum and the five per cent damages, as provided by statute.
This is an appeal from the Circuit Court of Pearl River County, Mississippi, wherein the appellee, Mrs. Louise Borden, recovered a judgment against the appellant Insurance Company in the amount of $2,152.67. The suit was based upon a fire insurance policy issued by the appellant to the appellee, insuring her home in the amount of $2,000. The appellant defended on the grounds that the provisions or the stipulations of the policy involved were violated by appellee in that she had other insurance on the house in question, and that the policy contained a provision reading as follows: "Other insurance is hereby prohibited unless the total insurance, including this insurance, is listed in the following spaces." The policy further provided: "No permission affecting this insurance shall exist, or waiver of any provision be valid, unless granted herein or expressed in writing added hereto".
The admitted facts in this record are that Lonnie Smith, agent for the appellant, issued an insurance policy to the appellee in the amount of $2,000, collecting the premium, and giving his receipt therefor. Later the house was totally destroyed by fire. The appellee, at the time this policy was issued to her, had in force another policy with another company in the amount of $1,000.
The evidence on the part of appellee was that six or eight months prior to the time the policy was issued by the appellant, through its agent, Lonnie Smith, she had occasion to be in Smith's office on other business, and while there the agent Smith solicited her insurance business. Appellee informed him she had a $1,000 policy on her house with another agency; that she owed the bank, and that this policy was just enough to pay the indebtedness. The agent then told her she had a nice place, and he did not think she had enough insurance on it. She told him she was not financially able to take out any more insurance, but that as soon as she could she would take out a policy with him, to which he replied, "Fine." Six or eight months later appellee called Smith on the telephone and told him she was ready for another policy, and she asked him how much the premium would be on $2,000. He told her the premium would be $15.44. She later sent her father down with the premium money to pick up the policy, and he returned the policy and the receipt to her.
Smith testified on behalf of the appellant and denied the telephone conversation with the appellee as testified to by her. He did not deny, however, the conversation with her in his office six or eight months prior to the issuance of the policy. He further testified that he issued the policy and gave it to her father, Mr. George Holden; that he asked Mr. Holden if there was any other insurance on the house; that Mr. Holden said there was not. He also testified that he was familiar with or knew the house.
Mr. Holden testified that he picked up the policy; that Smith, the agent, prepared it while he was there; that he paid Smith for it, and that Smith did not ask him anything about other insurance on the house.
The appellant contends that the lower court erred in refusing its request for (Hn 1) a peremptory instruction on the grounds that the provisions of the policy were violated by the appellee in that there was other insurance on the house. The evidence in this case shows that Smith, as the general agent for appellant, issued this policy on a verbal application therefor, and under the law he could waive any of the provisions of the policy. The only question presented here for decision is whether or not the appellee told Smith that she had another policy on her home in the amount of $1,000. We are of the opinion that this presented a question for the jury.
This case is controlled by the case of Liverpool London Globe Ins. Co. v. Delaney, 190 Miss. 404, 200 So. 440, 441. The facts in this case which are pertinent here are stated by the Court as follows: "The policy was issued by R.P. Stewart, a local agent of the appellant, to whom it supplied blank policies to be filled up, countersigned and issued by him, without referring applications therefor to the appellant. This policy was issued on a verbal application therefor by L.W. Delaney, the appellee's husband, who testified that he told Stewart of an insurance policy then covering the house to be insured, and answered such questions as Stewart propounded to him. Stewart also testified and admitted the verbal application for the policy but said that he did not remember that Delaney told him of the policy then on the house, and would say that he did not so tell him for the reason that a written memorandum made by him when the policy was applied for on which to issue it does not disclose this other policy on the house. The policy was not delivered to Delaney when he applied for it, but was thereafter mailed to the appellee, who received it in due course, but neither she nor her husband read it until after the house covered by it was destroyed by fire."
Upon these facts the Court held as follows: "If Delaney advised Stewart of the existence of this other insurance policy on the house here insured, which was for the determination of the jury, the stipulation in the policy that it would be void if the house covered by it was or would become covered by another insurance policy was waived, by his issuing the policy notwithstanding stipulations to the contrary therein. This Court has many times held in accord with the weight of authority elsewhere, — that (Hn 2) a local agent of an insurance company who is furnished by it with blank policies to be filled up, countersigned and issued by him has all the powers of a general agent of a company when issuing such policies and may waive any of their provisions."
The appellant also contends that the court erred in granting the appellee an instruction, and that the verdict was against the overwhelming weight of the evidence. We have carefully examined these assignments and find no error therein.
Affirmed.
The above opinion is adopted as the opinion of the Court, and for the reasons therein indicated the case is affirmed.