Greenwood Ice & Coal Co. v. Georgia Home Insurance

72 Miss. 46 | Miss. | 1894

Whitfield, J.,

delivered the opinion of the court.

On the testimony in this record, carefully considered as a whole, the jury, if the case had been submitted to them, could not possibly have reached any reasonable conclusion other than that Drennan was a .stockholder in the Greenwood Ice & Coal Company, and a director and the vice president thereof, at the time he, as agent of the appellee, issued the policy sued on,, insuring against loss by fire the plant of said Greenwood Coal & Ice Company. He thus occupied antagonistic positions, and, so situated as regarded the Greenwood Ice & Coal Company and the appellee, it is not to be tolerated that the appellee shall be bound by the policy thus issued. Insurance Co. v. Myers, 55 Miss., 479; 1 Biddle on Insurance, § 497; Mechem on Agency, § 67; 7 Am. St. R., note at p. 279 et seq.; Insurance Co. v. Insurance Co., 14 N. Y., 85.

The action of Kimball in investigating the loss, and submitting the matter to appraisement, was no waiver' of the right of the appellee to deny liability. The policy provides that " no appraisal shall be construed, under any circumstances, as evidence of the validity.of said policy, or of the company’s liability thereon. ’ ’ And the agreement for appraisal in this case stipulates that " it is for the purpose bf ascertaining and fixing the amount of said loss and damage only . . . and shall not determine, waive or invalidate any other right of either party to said agreement; ” and Kimball expressly refers to this' reservation in his testimony. The case of Insurance Co. v. Matthews, 65 Miss., 301, is decisive of this point.

Nor can it be justly claimed that Kimball, for the company, waived the right of the company to deny liability on the ground that he was interested in the Greenwood Ice & Coal Company, as stockholder, director and vice president. The agreement, at page twenty-five of the record, is that " Kimball, on ascertaining certain facts, of which he was ignorant, wrote the Greenwood Ice & Coal Company the letter of March 6,” withdrawing from the agreement to appraise the property. Kimball states that Keesler gave him the list of stockholders and officers of the company the day after he signed the appraisement agreement. Keesler says he did not recollect whether it was ¡that day or not. Kimball testifies that the information on which he acted in writing the letter of March 6 was the knowledge obtained in Greenwood, but after he signed the agreement fbr appraisal, as to Drennan’s being such stockholder, director and vice president, and in part from the home office, from which he was informed ‘ ‘ that the receipt of the daily report, three or four days after the fire, reached the home office by the same mail which brought the notice of loss.” Mr. Brown and Mr. Coart testify that the home office got this daily report February 20. Allowing for the time of mail transit, shown to be about thirty hours between Greenwood and Columbus, Ga., and keeping in mind Kimball’s uncontradicted statement as to acting in part on the information got from the home office, clearly after February 20, and looking to the date of the letter of March 6, no reasonable conclusion can be reached other than that Kimball’s action was as-prompt as the law, under the circumstances required, and did not have the effect of ratifying Drennan’s action in issuing the* policy.

We forbear a minute analysis of, or further comment on, the remarkable testimony in this record. It is enough to say that no verdict for plaintiff could have been allowed to stand, and the action of the court in granting the peremptory charge was eminently proper, and the judgment is

Affirmed.