70 So. 835 | Miss. | 1915
delivered tbe opinion of tbe court.
Suit was instituted in tbe circuit court of Harrison .county by the appellee, Wylie, against tbe appellant insurance company upon a policy of insurance for tbe amount of seven hundred and fifty dollars, insurance on personal property used in tbe livery and undertaking business, and consisting of a hearse, carriages, wagons, etc. Under tbe instruction of tbe court tbe jury returned a verdict in favor of plaintiff and assessed bis damages at seven hundred and nine dollars and eight cents. Tbe facts in tbe case, briefly stated, are as follows:
On or about December 16, 1913, tbe appellee was informed by one Mr. Tomlinson, tbe agent of appellant com
It is the contention of appellant that a fraud was practiced upon the insurance company hy the appellee in the procuring of this insurance, and for that reason the policy was void and a nullity, and that no subsequent waiver hy the agent of the company could breathe life into a policy which was void from its inception. In support of this contention, appellant relies principally upon the case of Insurance Co. v. Antram, 86 Miss. 224, 38 So. 626. The facts in the instant case do not justify the contention of appellant. There were no false or fraudulent representations whatever made hy the appellee to the agent of appellant at the time he instructed him to write this insurance. The facts show that the appellee was notified hy the agent of appellant that his insurance had expired,
“If the assured made1 false statements to the agent of appellant, and thereby secured the issuance of a policy' which, had the truth' been stated, would not have been issued, the contract of assurance was never entered into, being absolutely vitiated by the fraud.”
In the instant case, however, no false or fraudulent representations — in' fact, no representations whatever — ■ were made by the insured. In the case of Rosenstock, Ex’r v. Insurance Co., 82 Miss. 674, 35 So. 309, the policy recited that the insurance would be void if the interest of the assured had not been truly stated to the company, or if it was not truly stated in the policy, or if the assured
“An insurance agent, clothed with authority to make contracts of insurance or to issue policies, stands in the stead of the'company to the assured. His acts and declarations in reference to such business are the acts and declarations of the company. The company is bound, not only by notice to such agent, but by anything said or done by him in relation to the contract or risk, either before or after the contract is made.”
, To the same effect is Insurance Company v. Sheffy, 71 Miss. 919, 16 So. 307; also Insurance Company v. Gibson, 72 Miss. 58, 17 So. 13.
The case at bar is very similar to that of Insurance Company v. Holmes, 75 Miss. 390, 23 So. 183. In the Holmes Case the insured sent to the company’s asent, who issued the policy, requesting him to send a blank form for application for insurance, and also to send a man to inspect the house on which the insurance was de
“This is a case, then, in which no application — no formal application — was made, because the agent held it unnecessary, inasmuch as he knew about the condition of the property, and a case in which appellee did not know there was any anti-mortgage clause contained in the policy until after the loss, and the question is whether the company shall now be permitted to repudiate its contract made, not upon any misrepresentations, or even representations, of the insured, but upon its own knowledge of the condition of the property. If this policy was issued upon the knowledge of the company as to the condition of the property, and after refusal to furnish the usual blank application, whereby the insured would have apprised the insurer of the true condition of the property, and not upon any representation of the insured, then the anti-mortgage clause must be held to have been waived. Any other view would involve the holding by us of this proposition: That the insuraice company, waiving any application by the person desiring insurance and issuing a policy upon its own knowledge of the condition of the property, may receive the premiums paid for the indemnity, and defeat a recovery for a loss sustained by inserting in the policy a provision invalidating the contract from the moment it was signed and delivered, thus inducing the insured to rest upon a contract which the company never intended to carry out. This cannot be sound law.”
The case at bar is a much stronger case, against the insurance company than that above quoted, for the rea
“A week after the fire, with full knowledge by the insurance company, through its special agent and adjuster, Mr. Alexander, of the existence of the mortgage, it received, through its local agent, Mr. Eussell, the premium on the policy and held it. This fact carries the whole case shown by the record for the assignee of the insured, because it was a waiver of its defenses.”
The case of Insurance Company v. Dobbins, 81 Miss. 623, 33 So. 504, goes even further than the Smith Case in holding- the insurance company estopped to set up a forfeiture of the insurance. In the Dobbins Case:
“The agent was paid the premium some time in the forenoon of October 25th, without knowledge at that time of the additional insurance; but six hours thereafter, on the same day, when there had been no change whatever in the condition of the parties, he was fully informed of the additional insurance. . . . After full knowledge on the 25th of the other insurance, the agent had another conversation with Dobbins, in which he told him that the policy had been forfeited on account of the additional insurance, but that he would report the matter to the company; and more than that, when Dobbins,came to him to get blank proofs to make proofs -of loss, he furnished them.”
On page 630 of 81 Miss., on page 506 of 33 So. the court says:
■ We therefore conclude: (1) That it was the duty of the agent of the insurance company, in the absence of any request by him for information from the insured, to have informed himself as to the true condition of the property insured; that his acts in this respect are ■binding upon his principal, the insurance company; that, failing to do this, the insurance company had no right to insert in this policy the anti-mortgage, clause and’ the anti-insurance clause, and that neither of said clauses forms a part of the contract of insurance; and (2) that by’the acceptance of the premium by its agent after the fire, and after the agent had knowledge of the mortgage and of the additional insurance, then this was a waiver on the part of the insurance company of these Iwo clauses in the contract.
'Affirmed.