Aetna Insurance Co. of Hartford v. Renno

50 So. 563 | Miss. | 1909

Lead Opinion

Whitfield, O. J.,

delivered the opinion of the court.

The testimony of Voltz and of Aills set out clearly and explicitly the conversation had between Voltz, Harvey, and Renno; Aills being present and hearing same. That conversation, as detailed by Aills, is in substance as follows: That Ren-

no and Harvey were having a conversation about this insurance. “They appeared to’ be looking over some papers. Renno said :• ‘If you insui’e me, I want you to insure me; and when this expires, I want you to reinsure me.’ And they talked along that way in conversation, I suppose, about five minutes. Harvey said to Renno: Hf you will trust your business, or turn over your insurance, to me, we [that is, Harvey and Yoltz] will keep you insured. We will look after you and keep it insured.. Your place will be insured, and we will keep it insured. You need not be uneasy; just leave it to us.’ ” Yoltz testified to-the same conversation, in substance, except that he makes it perhaps more explicit and full even than Aills. The effect of this conversation, which was not testified to in the former trial by Yoltz, who was then a witness, and which was never testified' to by Aills until this trial, Aills never having been introduced' before, was to make an entirely different state of case; on the testimony, from that presented by the former record — a state-of case by which the liability of the appellant clearly appears. The learned chancellor reviewed the testimony of these two witnesses as a question of fact in the case, and, we may say, all-controlling fact, and entered a decree, evidently on account of their testimony, changing tire case entirely from what it was before, in favor of the appellee. Neither of these witnesses was in any -way impeached in any mode known to the law, and Aills seems to be a reputable merchant, and both Aills and Yoltz testify that they have no interest whatever in the case.

Under these circumstances, we think the decree of the chancellor, finding the facts as he did, is correct, and the decree is affirmed.

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Dissenting Opinion

Mayes, J.,

delivered the following dissenting opinion:

In my judgment the nonliability of the Aetna Insurance Company to Renno was finally settled in the case of Aetna Insurance Company v. Renno, 93 Miss. 594, 46 South. 947; but’if I am mistaken in this, the facts of this case do not establish any liability on tbe part of tbe above company. Renno denied in tbe case as originally made tbat Harvey or Yoltz bad any authority to represent bim in tbe cancellation of tbe Home Insurance policy. Therefore, as declared in the former opinion, tbe Home Insurance policy bad never been canceled and was tbe only insurance which attached to this risk, either under tbe facts of tbat case or under tbe facts of tbe so-called new case which comes to this court now. Tbe facts now do not show tbat there was any agreement to do anything except to reinsure when tbe policy expired. Tbe policy bad not expired, and there was no authority given by Renno, either expressly or impliedly, to any agent of any company to cancel this policy without notice to bim as stipulated in tbe policy and before its expiration. I do not recapitulate tbe facts, since they are fully stated in the case in 93 Miss. 594, 46 South. 947, supra.

I think tbe decree should be reversed, and dismissed as to tbe Aetna Insurance Company.