Aetna Ins. Co. v. Singleton

• Citation: 174 Miss. 556,164 So. 13
• Decision Date: 11 November 1935
• Docket Number: 31871
• Court: Mississippi Supreme Court
• Parties: AETNA INS. CO. v. SINGLETON

164 So. 13

174 Miss. 556

AETNA INS. CO. v. SINGLETON

No. 31871

Supreme Court of Mississippi

November 11, 1935

Division B

Suggestion Of Error Overruled January 13, 1936.

APPEAL from the circuit court of Scott county HON. D. M. ANDERSON Judge.

Suit by A. A. Singleton against the AEtna Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Reversed and rendered.

Watkins & Eager, of Jackson, and A. W. Cooper, of Forest, for appellant.

The fire insurance policy sued upon in this case lapsed and became unenforceable for failure of the appellee to pay the premium installment note maturing May 1, 1930, therefore the circuit judge committed error in refusing to give appellant a peremptory instruction to find in its favor.

Bergholm v. Peoria Life Ins. Co., 74 L.Ed. 416; Berry v. Lamar Life Ins. Co., 165 Miss. 405; Ga. Cas. Co. v. Cotton Mills Co., 159 Miss. 396; New Am. Cas. Co. v. Perryman, 162 Miss. 864; Locomotive Eng. v. Meeks, 157 Miss. 97; So. Home Ins. Co. v. Wall, 156 Miss. 865; Brotherhood v. Bridges, 144 So. 554; Fergerson v. Prov. Ins. Co., 155 So. 168.

Contracts of fire insurance such as involved in this case have uniformly been held valid and enforceable.

Home Ins. Co. v. McFarland, 142 Miss. 558; Hartford Fire Ins. Co. v. Dickerson, 160 Miss. 439.

The courts with practical unanimity hold that liability under the policy is suspended and the policy is unenforceable during the period of default.

McCullough v. Home Ins. Co., 12 Ann. Cas. 626; Continental Ins. Co. v. Daly, 7 P. 158; Carlock v. Phoenix Ins. Co., 28 N.E. 53; Jefferson Mut. Co. v. Murray, 86 S.W. 813; Thomas v. North River Ins. Co., 277 S.W. 1041; Hartford Fire Ins. Co. v. Johnson, 290 S.W. 673; Hoover v. Hartford Fire Ins. Co., 11 S.W.2d 976; Lindsey v. Home Ins. Co., 51 S.W. 924; Continental Ins. Co. v. Brown, 287 S.W. 16; Fireman's Fund Ins. Co. v. Jackson, 131 S.E. 359; Wall v. Home Ins. Co., 36 N.Y. 157; Knauf v. Hartford Fire Ins. Co., 129 So. 404; Robinson v. Continental Ins. Co., 6 L.R.A. 95.

The appellant should not be deprived of the benefit of provisions inserted in the contract for the purpose of securing prompt payment of the premium.

Campbell Paint & Varnish Co. v. Hall, 131 Miss. 671; Columbian Nat. Life Ins. Co. v. Morey, 126 F.2d 580.

A mere indulgence as to the payment of the note would not reinstate the insurance, there must have been an agreement to extend the maturity of the note for a fixed period, for a valid consideration.

8 C. J. 426, sec. 628; McLemore v. Powell, 6 L.Ed. 726; Veazie v. Carr, 3 Mass. 14; Graham v. Pepple, 132 Miss. 612; Industrial Loan & Invest. Co. v. Miller, 163 Miss. 268.

The same rule is applicable to premium notes of the character herein involved.

Smith v. Mass. Accident Co., 256 N.Y.S. 255; Edington v. Mich. Mut. Life Ins. Co., 183 S.W. 728; Denton v. Prov. Life, 36 S.W.2d 657; Home Ins. Co. v. Karn, 39 S.W. 501; Diehl v. Adams, 58 P. St. 452; Carroll v. The Charter Oaks Ins. Co., 38 Barb. (N.Y.) 402; Beatty v. Lycoming, 66 Pa. St. 9; Dale v. Continental Ins. Co., 31 S.W. 266; Davis v. Home, 44 L.R.A. (N.S.) 626; 67 C. J. 309, 311; Kinchen v. Royal Exchange Ins. Co., 134 So. 340; So. States Fire Ins. Co. v. Kruenberg, 74 So. 63.

Even if an automatic suspension could be revivified by a later waiver without consideration, which is denied, still the appellee's testimony is insufficient to establish a waiver of the suspension of the policy.

Mutual Life v. Hebron, 166 Miss. 145.

Soliciting agent Knox Huff was not a general agent of the appellant, but was an agent of such limited authority that subsequent to the delivery of a policy of insurance he was without authority to extend the note or to reinstate the lapsed policy.

26 C. J. 287; Section 5205, Code of 1930; Hartford Fire Ins. Co. v. Clark, 154 Miss. 418; Hartford Fire Ins. Co. v. Williams, 165 Miss. 233; Home Insurance v. Therrell, 144 So. 861; Fire Ins. Co. v. Price, 169 Miss. 531; Mutual Ben. v. Caver, 169 Miss. 554; N. Y. Life v. Odom, 100 Miss. 219; Ins. Co. v. Sorsby, 60 Miss. 302; Big Creek Drug Co. v. Stuyvesant, 115 Miss. 333; Mutual Life v. Hebron, 166 Miss. 145; Modern Order v. Griffin, 151 Miss. 312; Sovereign Camp v. Hynde, 134 Miss. 705; Odd Fellows v. Smith, 101 Miss. 332; Critchett v. Am. Ins. Co., 5 N.W. 543; Henning v. Am. Ins. Co., 194 P. 647; Lett v. Liverpool, etc., Co., 105 So. 553; Hill v. Phil. Life, 35 F.2d 132; Curtin v. Hancock Mut. Co., 167 N.Y.S. 1041; Rabb v. N. Y. Life, 93 S.E. 711; Robbins v. Farmers Mut., 133 A. 513; North River Ins. Co. v. Reeder, 288 S.W. 257; Home Life & Acc. v. Haskins, 245 S.W. 181; Cohn v. Home Ins. Co., 87 A. 1014; Foscue v. Greensboro, 144 S.E. 689; Am. Ins. Co. v. Hornbarger, 108 S.W. 213.

One of appellee's instructions submits to the jury the question as to whether or not Huff, the soliciting agent, had authority and did extend the time of the payment of the premium. This instruction is erroneous as unsupported by the facts. First, there was insufficient evidence to establish an agreement upon the part of Huff to extend the note; second, there was no proof that Huff, the soliciting agent, had authority to extend the payment of the note. The law is well settled that it is erroneous to give an instruction when it is not supported by the testimony.

New Orleans Great Northern R. Co. v. Frazier, 130 So. 493, 158 Miss. 417; Williams v. City of Gulfport, 141 So. 288, 163 Miss. 334; Foster v. City of Meridian, 116 So. 820, 150 Miss. 715; Foodin v. Gage, 117 So. 881, 151 Miss. 351.

The judgment and verdict are against the overwhelming weight of the testimony.

Justice v. State, 154 So. 265, 170 Miss. 96; M. & O. R. Co. v. Johnson, 165 Miss. 397; Holderfield v. State, 132 Miss. 440; C. & G. R. Co. v. Buford, 150 Miss. 832; Davis v. State, 132 Miss. 448.

O. B. Triplett, Jr., of Forest, for appellee.

The time of payment of the May 1, 1930, installment was extended until January 1, 1931, by J. Knox Huff, the policy writer, and said Huff had authority so to do.

The extension thus granted by the agent, Huff, was known to and subsequently ratified by C. I. Cowden, superintendent of appellant's southern farm department; and appellee was notified of this ratification prior to his loss.

The appellee never refused payment of the installment note; the appellant had not abandoned the hope of collection thereof; but on the contrary had fixed January 1, 1931, as the date to renew its effort to collect same. Therefore, even if appellee had been delinquent at the time of his fire loss, the provision for a forfeiture of appellee's rights to coverage during the period of delinquency, if any, was void.

Huff bound appellant by the extension granted. He was a general agent.

Home Ins. Co. v. Gibson, 17 So. 13, 72 Miss. 58; Indemnity Co. of America v. Jenkins, 107 So. 208; Hartford Fire Ins. Co. v. Clark, 122 So. 553, 154 Miss. 418; AEtna Ins. Co. v. Lester, 154 So. 709, 170 Miss. 260; London Guar. & Acc. Co. v. Miss. Central R. R. Co., 52 So. 787, 97 Miss. 165; Joyce on Insurance, secs. 425, 426 and 440; Planters Ins. Co. v. Myers, 55 Miss. 499; Insurance Companies v. Sorsby, 60 Miss. 302; N. Y. Life Ins. Co. v. O'Dorn, 100 Miss. 219, 56 So. 379, Ann. Cas. 1914A, 583; Travelers Fire Ins. Co. v. Price, 152 So. 889, 169 Miss. 531; Cooley's Briefs on Insurance (2 Ed.), pages 463 and 465; Sutherland v. Federal Ins. Co., 52 So. 689, 97 Miss. 345.

Appellant ratified the extension. The extension of time was valid; the forfeiture was waived.

Miller v. Bank of Holly Springs, 95 So. 129, 131 Miss. 55, 31 A.L.R. 698; Stonewall Life Ins. Co. v. Cooke, 144 So. 217, 165 Miss. 619; A. L. I. Restatement Contracts, sections 310 and 90.

The suspension of liability feature was void.

Cook v. Lamar Life Ins. Co., 125 So. 409, 156 Miss. 16.

The new trial for surprise was properly denied.

Queen Ins. Co. v. Betbeze, 53 So. 592, 98 Miss. 262; Ennis v. Y. & M. V. Ry. Co., 79 So. 73, 118 Miss. 509; Hattiesburg Coca Cola Bottling Co. v. Price, 108 So. 291, 143 Miss. 14; Mutual Building & Loan Assn. v. Watson, 147 So. 817.

The evidence sufficiently supported the verdict.

Argued orally by W. H. Watkins, Sr., for appellant, and by O. B. Triplett, Jr., for appellee.

OPINION

Ethridge, P. J.

The appellee, A. A. Singleton, filed suit in the circuit court of Scott county against the appellant for the sum of two thousand five hundred dollars on a two thousand dollars fire insurance policy issued by the appellant to the appellee covering his residence in Scott county. The policy was dated April 18, 1929, and was to cover a period of five years, and the property was destroyed by fire on December 12, 1930. The first installment was paid at the time of the delivery of the policy, and a note was given for the balance of the five years' premium, payable in installments annually, and due on May 30, 1930, and annually thereafter. The note that was due on May 1, 1930, was not paid. The policy contained the following stipulation:

"It is understood and expressly agreed that this company shall not be liable for any loss or damage that may occur to the property herein mentioned while any installment of the installment note given for premium upon this policy remains past due and unpaid; or while any single payment, promissory note (acknowledged as cash or otherwise) given for the whole or any portion of the premium remains past due and unpaid. Payments of notes and installments thereof must be made to the said AEtna Insurance Company at office in Atlanta Georgia, or to a person or persons specially authorized to collect the same for said company. And it is understood and expressly agreed that the failure of the assured to receive notice of the approaching maturity of the...