Christian & Brough Co. v. St. Paul Fire & Marine Ins. Co.

• Citation: 5 F.2d 489
• Decision Date: 05 March 1925
• Docket Number: No. 4368.,4368.
• Parties: CHRISTIAN & BROUGH CO. v. ST. PAUL FIRE & MARINE INS. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

5 F.2d 489 (1925)

CHRISTIAN & BROUGH CO. v. ST. PAUL FIRE & MARINE INS. CO.

No. 4368.

Circuit Court of Appeals, Fifth Circuit.

March 5, 1925.

John Brunini, Robert L. Dent, and Hirsh, Dent & Landau, all of Vicksburg, Miss. (Brunini & Hirsch, of Vicksburg, Miss., on the brief), for plaintiff in error.

T. C. Catchings and R. L. McLaurin, both of Vicksburg, Miss., for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judge.

This is a suit on a fire insurance policy to recover the value of a number of automobiles which were destroyed by fire.

The policy, which was attached to and made a part of the declaration, contains the following provisions: It was to continue in force until canceled, and was intended to cover all automobiles which were owned and kept for sale by the assured. The assured agreed to furnish to the insurer, within 15 days after the close of each calendar month, a correct report of all automobiles owned or sold by it during that month, and to pay the insurance premiums. Any evasion in the matter of such reports or of payments of premiums, or any concealment or misrepresentation of any material fact or circumstance concerning the insurance, or the subject-matter thereof, renders the policy void; and unless the assured should fully comply with all requirements of the policy no suit or action is sustainable. No officer, agent, or other representative of the insurer has the power to waive any of the terms of the policy unless the waiver be written upon or attached thereto, nor should any privilege or permission affecting the insurance exist or be claimed by the assured unless so written or attached. The policy was dated January 14, 1920. The declaration alleges that the fire occurred on August 24, 1921.

The insurance company filed pleas to the effect that it retired from business in the state of Mississippi on March 1, 1921; that the assured never paid any premiums earned thereafter, and failed to make report of the automobiles owned and sold from the date of the company's retirement to the date of the fire; and that therefore the policy by its terms became forfeited.

Plaintiff filed replications, in which it denies that the defendant had withdrawn from business in Mississippi, but admits the other allegations of fact set out in the pleas, and alleges that the defendant had waived any right it had to insist upon a forfeiture by knowingly permitting its agents to enter upon a course of dealing whereby, on several occasions during the year 1920, a single report of automobiles owned and sold covered a period of two months, and that the defendant after March 1, 1921, accepted premiums shown to be due upon a...