Bolls v. Sharkey, 45398

• Decision Date: 15 September 1969
• Docket Number: No. 45398,45398
• Citation: 226 So.2d 372
• Parties: William J. BOLLS v. U. S. SHARKEY.
• Court: Mississippi Supreme Court

Page 372

226 So.2d 372

William J. BOLLS v. U. S. SHARKEY.

No. 45398.

Supreme Court of Mississippi.

Sept. 15, 1969.

Dabney & Dabney, Vicksburg, for appellant.

Ellis & Ellis, Vicksburg, for appellee.

Dent, Ward, Martin & Terry, Vicksburg, filed motion to dismiss appellee's cross-appeal.

BRADY, Justice.

This is an appeal from the Circuit Court of Warren County, Mississippi, wherein the appellee, U. S. Sharkey, obtained a directed verdict against the appellant, William J. Bolls, in the sum of five thousand dollars.

The facts pertinent to this appeal are: In 1962 the appellee first purchased his personal automobile liability insurance from the appellant, a general insurance agent. The appellee began working for Rocket Cab Company as a taxi driver, and in 1963 the appellee went to the appellant to obtain the insurance coverage which he must have to legally drive a taxi. Due to the appellee's advanced age (he was seventy-four years old on June 15, 1968) and his driving record, assigned risk insurance was the only type that could be obtained. The appellant placed a policy for the appellee with the Hartford Accident and Indemnity Company, hereinafter referred to as Hartford. Hartford was to insure the appellee for one year and then for two additional renewal periods of one year each. A five-ten-five policy was issued from August 22, 1963 until August 22, 1964, at which time the policy was renewed from August 22, 1964 to August 22, 1965, being No. 20 AZ 271540.

The appellee received a notice dated July 7, 1965, from Hartford which stated that a premium of $335.50 was due and that the check should be made payable to the broker in time for the prior to forward the money to Hartford prior to August 20, 1965. The notice also stated: 'If payment is not received by the company prior to the date specified (August 20, 1965), YOUR AUTOMOBILE LIABILITY INSURANCE WILL TERMINATE. * * * NO FURTHER PREMIUM NOTICE WILL BE SENT TO YOU.' Upon receipt of the notice the appellee went to the appellant's office and paid him two hundred dollars down on the amount due. The appellee signed a premium servicing contract with the Merchants Bank and Trust Company in Vicksburg for the remainder of the amount due plus interest in the sum of $143.63 upon which he completed payment on December 16, 1965. No attempt has been made by the appellant to refund any of the money to the appellee. According to the testimony of the appellee the appellant was not in the habit of and did not give him a copy of this or previous policies. This allegation is strongly denied by the appellant who said that he had mailed copies of the previous policies to the appellee.

The appellant did not remit the appellee's payment to Hartford. On December 8, 1965, the appellee went to the appellant, who filled out a certificate of insurance which was taken to the sheriff of Warren County and then mailed to the Motor Vehicle Comptroller so that the appellee could get his bus tag. Thereafter, on December 15, 1965, a little before six o'clock in the morning, the appellee was involved in an accident with Mrs. Colean Harris. The appellee testified that he reported the accident the same day to the appellant. The appellant testified that upon checking his file he immediately notified the appellee that he was not insured. The appellee testified that he was not told he did not have insurance until after he was sued and had reported such fact to Mr. Dabney, who he had been told represented the insurance company. The appellee further testified that on the S.R. 21 form which was filled out by the appellant and mailed to the Department of Public Safety, Safety Responsibility Bureau, in Jackson, regarding the accident, he had listed Hartford as the insurer.

The appellant denies that he filled out the form for the appellee. Testimony was given as to the general procedure followed by the Bureau upon receipt of notification of an accident. The S.R. 1 form, a small piece of paper about one and one-half inches wide, is detached from the S.R. 21 form and placed in a folder. On Friday the S.R. 1 forms are sent to the various companies. The forms going to a particular company are all mailed first class in one envelope. Before mailing, the S.R. 1 form is checked against the S.R. 21 form for accuracy and is initialed by the person who does the checking. If an insurance company denies coverage, it must write the Bureau that it is denying coverage. If coverage is not denied, no answer is made. Hartford did not write the Bureau denying that the appellee was covered by them.

The appellee, following the accident, was not asked to post bond or show further proof of insurance.

The appellee had a second accident on May 5, 1966. The proof shows that the appellee settled this accident with Mrs. Johnson for $388.74, which he paid himself, and obtained a release. The appellee testified that he paid this sum because he did not want the second accident to go on his record for fear that the insurance company would terminate his insurance.

Suit was filed against the appellee by Mrs. Harris. An agreement was entered into between Mr. Ellis, who was Mrs. Harris' lawyer, Mrs. Harris and the appellee. The cause was settled for seven thousand dollars, and a default judgment was entered against the appellant for that amount on December 9, 1966. The judgment was stipulated to by the attorneys for all parties in the case at bar. Neither the appellee nor Mrs. Harris gave any testimony as to damages at this previous trial. After the judgment was entered, the appellee and Mrs. Harris agreed that the appellee would pay twelve hundred dollars as an advance on medical bills and expenses and that the remainder would be paid upon the appellee's obtaining a judgment against the appellant and the insurance company. A second person involved in the December 16, 1965 wreck, Mrs. Sheffield, settled her claim for $250, which the appellant alleges he paid out of the premium money he had received from the appellee.

On June 20, 1967, the appellee filed suit against the appellant and Hartford for recovery of the seven thousand dollar judgment. After hearing all of the testimony in the case, the judge directed a verdict in favor of the defendant, Hartford, and directed a verdict in favor of the appellee and against the appellant in the sum of five thousand dollars. Whereupon the appellant filed an appeal to this Court. The appellee also attempted to appeal as to Hartford, but no bond was filed, and, upon motion by Hartford, the appellee's cross-assignment of error and that portion of the appellee's brief which related to Hartford were stricken from the record.

The appellant made eight assignments of error, which present the following questions:

1. Has the appellee by his conduct waived any claim that he might have against the appellant because of his knowledge that he was not covered until the policy was delivered into his hands?

2. Did the appellee fail to mitigate his damages?

3. Was the judgment rendered in the matter of Colean Harris against the appellee void, and are the instant proceedings based on that void judgment likewise void?

4. Was the matter of settlement a question for the jury?

5. Is Hartford liable to the appellee because it failed to send notice of cancellation as required by the rules of the Assigned Risk Plan, Mississippi Code 1942 Annotated section 5687-03(B)(5) (1956)?

The first contention urged by the appellant in his brief is that the appellee by his conduct waived any claim that he might have against the appellant. The appellant testified that the appellee understood that until he had received and insurance policy he was not covered. To the contrary, the appellee asserted that it was a common practice for the appellant not to send policies to the insured. As is stated in National Surety Corporation v. Vandevender, 235 Miss. 277, 108 So.2d 860 (1959), which is cited by the appellant in his brief: 'Estoppel weighs and considers the conduct of men in their dealings with each other and gives that effect and meaning to their actions which common sense and justice dictates.' 235 Miss. at 285, 108 So.2d at 863. To fully explore appellant's contention we must consider carefully all of the conduct of the appellant and the appellee relative hereto and their complete course of dealing. In addition to the testimony above discussed, it must be noted tht prior to the accident the appellee went to the appellant in order to get proof of insurance so that he might purchase a bus tag. The appellant gave in writing the necessary proof of insurance and did not in any manner indicate that the appellee was not covered. It was not until after the accident that the appellant by any of his actions indicated that the appellee was not insured. This defense which the appellant now attempts to assert is of an equitable nature, and we find that, as such, his actions prior to the time of the accident porohibit him from now attempting to place a different interpretation upon the dealings of the two parties than he placed upon them as demonstrated by his actions prior to the time of the accident.

In addition, we do not find any admission or act by the appellee subsequent to the time the appellant informed him that he was not insured which has in...