Big Creek Drug co. v. Stuyvesant Ins. Co.

• Citation: 75 So. 768,115 Miss. 333
• Decision Date: 25 June 1917
• Docket Number: 19259
• Court: United States State Supreme Court of Mississippi
• Parties: BIG CREEK DRUG CO. v. STUYVESANT INSURANCE COMPANY

75 So. 768

115 Miss. 333

BIG CREEK DRUG CO. v. STUYVESANT INSURANCE COMPANY

No. 19259

Supreme Court of Mississippi

June 25, 1917

Division B

APPEAL from the circuit court of Calhoun county, HON. J. L. BATES Judge.

Suit by Big Creek Drug Company against the Stuyvesant Insurance Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Dunn &amp Patterson and Vardaman & Vardaman, for appellant.

McLaurin & Armistead, for appellee.

OPINION

STEVENS, J.

Appellants W. H. Taylor and John Denley, are partners in trade, doing business under the firm name of Big Creek Drug Company. They instituted this suit against the appellee, Stuyvesant Insurance Company, on a policy of fire insurance covering a stock of goods in their storehouse in the village of Big Creek, Calhoun county. The defendant in its notice under the plea of general issue alleged a forfeiture based on the iron-safe clause. The plaintiffs replied to this special notice by alleging that the provisions of the iron-safe clause were waived by the defendant company at the time the risk was solicited and the policy delivered. On the trial of the case, it appeared that one E. F. Dezonia, Jr., inspected the risk and took the application for the insurance, and did this as an agent of the Home Mutual Insurance Company. The written application was forwarded to J. F. Chambers, agent, at Corinth, Miss. It appears that Mr. Chambers was the general state agent of the Home Mutual, and that his company, on receiving the application, preferred that other companies share the risk, and accordingly had the Stuyvesant Insurance Company and the German Fire Insurance Company each to issue a policy to the Big Creek Drug Company for and in the sum of one thousand dollars, the Home Mutual at the same time issuing a policy for one thousand dollars. The policy issued by the Home Mutual Fire Insurance Company was countersigned by Moore & Chambers; while each of the other two policies, in the Stuyvesant Company and the German Fire Company, respectively, was countersigned by J. F. Chambers, agent at Corinth, Miss. The testimony of Mr. Taylor, one of the partners, shows that his company had taken out insurance in the Home Mutual a year before the policy sued on was issued. When the first policy expired, Dezonia solicited a renewal. At the time the renewal policy was solicited Mr. Taylor, according to his testimony, told the agent that he did not have an iron safe and did not expect to keep one; that he kept his books in what is known as a "McCaskey Register." Witness further says that Mr. Dezonia looked over the stock and examined the system of bookkeeping; that the first time he took insurance the agent asked him if he had an iron safe, and witness advised him that he did not; that the agent assured him that his failure to keep an iron safe would not stand in the way of a policy being written, the agent saying "that didn't make any difference;" that "it wasn't necessary." Mr. Taylor further says that Dezonia is the only agent who came to Big Creek or there solicited insurance for the Home Mutual Insurance Company; that Dezonia took applications, collected premiums, accepted promissory notes in settlement of premiums, inspected all risks, delivered policies, and, after loss, attended to the furnishing of proof of loss and having an adjuster to come and figure on the amount or extent of the loss. It appears that the adjuster, before he consented to figure on the amount of the loss, required Mr. Taylor to sign a non-waiver agreement. During the course of the examination of Mr. Taylor as a witness, the trial judge excluded his evidence in reference to a waiver, upon the ground that Taylor was bound to have known that Dezonia was a mere soliciting agent because the application for the insurance was forwarded to the general office of the company and policies there countersigned and issued. After this ruling of the trial judge, counsel for the plaintiffs offered to prove that Dezonia wrote other merchants in Big Creek; that he represented himself to be a general agent; that sometimes he received applications and sometimes delivered policies without taking any written applications; that he collected premiums from other merchants, and delivered policies; that he at one time appointed a subagent for his company in that territory, and that in all these instances policies were not countersigned by Dezonia, but were issued at Corinth. Plaintiffs offered to introduced Mr. Cruthirds, Mr. Terry, Mr. Williamson, and Mr. Provine. The defendant objected to this line of testimony, and the court sustained the objection. It appears that in the written application which appellants signed, the written warranties at the bottom of the page, providing that representations made by the agent should not bind the company, were erased by Mr. Dezonia; and there is some evidence, also, to the effect that the written application was not signed at the place provided for the signature, but that on the back of the application was a diagram...