Big Creek Drug co. v. Stuyvesant Ins. Co., 19259

• Court: Mississippi Supreme Court
• Writing for the Court: STEVENS, J.
• Citation: 75 So. 768,115 Miss. 333
• Decision Date: 25 June 1917
• Docket Number: 19259
• 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 & Patterson and Vardaman & Vardaman, for appellant.

McLaurin & Armistead, for appellee.

OPINION

[115 Miss. 334] 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 [115 Miss. 335] 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 [75 So. 769] 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...