Mississippi Fire Ass'n v. Stein

41 So. 66 | Miss. | 1906

Cauhoon, J.,

delivered the opinion of the court.

It can make no difference in his right to recover for a fire loss that Mr. Stein was a stockholder in the company which insured his house. Even if it were correct that the questions here were not in the jurisdiction of chancery, as previously understood, it is clear that this cannot be availed of since the adoption of sec. 147 of the constitution of 1890; the chancellor having taken jurisdiction and decided the case.

The bill in this case is to reform an insurance policy by inserting a vacancy permit from May 20 to June 20, 1904 — thirty days; the loss having occurred on the night of May 20, 1904. There was a proper permit from April 20 to May 20, 1904, and there is a controversy as to whether the fire did not in fact occur during the life of that permit, which we do not decide. The policy had a clause providing that “it shall be void if it [the building] be or become vacant or unoccupied and so remain for ten days.” It was issued on May 18, 1903, for three years. There had been four valid vacancy permits on it for thirty days each. The first was from the date of the policy, it having been insured while vacant; the second, from June 18, 1903; the third, from November 5, 1903; and the fourth from April 20, 1904. The insurance was taken with S. S. Steele & Co., agents of appellant. It was the custom with this firm of insurance agents, in reference to this and divers other policies of insurance appellee had on divers other structures, to obey his verbal request and issue vacancy permits, and take them, without submitting them to appellee, to the place where appellee kept his policies, and to which these insurance agents had access, and to attach them to the policies without submitting them to appellee. This firm of insurance agents had authority from the company to give vacancy permits and to 'waive any charges for such permits. No charge was ever made against' the appellee for such permits. On the contrary, it was customary for this firm of insurance agents, and other agents of the appellant, to make no charge for vacancy permits, unless the insurance company specially directed them to do so on receipt of daily reports showing the issuance of them. The particular building in question was sometimes vacant and sometimes occupied, and the custom being as we have stated, and while the written permit for thirty days from April 20 to May 20, 1904, vvas in force, this agency was requested by appellee, who was about to leave the state for a while for his health, to issue another vacancy permit at the expiration of that one, which was agreed to by one of the members of that agency. This, through inattention or oversight, was not done. Under this state of facts we hold that the court below properly granted the prayer of the bill.

Divers other contentions are argued with great force on both sidesbut, inasmuch as our ruling on this question is decisive of the whole case, we do not enter on their discussion.

Affirmed.