Camden Fire Ins. Ass'n v. Koch

• Decision Date: 23 February 1953
• Docket Number: No. 38687,38687
• Citation: 63 So.2d 103,216 Miss. 576
• Parties: CAMDEN FIRE INS. ASS'N v. KOCH.
• Court: Mississippi Supreme Court

Page 103

63 So.2d 103

216 Miss. 576

CAMDEN FIRE INS. ASS'N v. KOCH.

No. 38687.

Supreme Court of Mississippi.

Feb. 23, 1953.

Wallace, Greaves & Wallace, Gulfport, for appellant.

J. Boyce Holleman, Wiggins, for appellee.

McGEHEE, Chief Justice.

The plaintiff Frank Koch sued on three separate fire insurance policies which had been filled out, signed and delivered by Jackson & Taylor, an insurance firm at Gulfport, Mississippi, in favor of Mrs. G. R. Bond and covering the same building, furniture and equipment that was later purchased by the plaintiff from Mrs. Bond and her husband G. R. Bond on May 15, 1950, the insurance policies having been issued on June 22, 1948, for a period of three years from date. The three policies were issued on the same day by the said insurance agency, one being on behalf of Camden Fire Insurance Association for $1,667, one being on behalf of the Travelers Fire Insurance Company for $1,667, and one being on behalf of the Phoenix Insurance Company for the sum of $1,666. The three suits were consolidated by agreement of the parties in the trial court and were tried as one case.

The three policies insured a cafe building and other improvements on a parcel of land about one mile north of Wiggins for the total sum of $4,000, and also insured the furniture, equipment, etc., located in the cafe building for the total sum of $1,000.

The property was acquired by G. R. Bond in October, 1936, but he conveyed the same to his wife on February 22, 1944. For many years they kept the buildings and the contents thereof insured through the said Jackson & Taylor Insurance Agency. When the policies were issued on June 22, 1948, the title to the property was vested in Mrs. Bond and she was therefore named as the insured in the policies.

On February 2, 1949, there was annexed to, and made a part of each policy, a mortgage clause providing that 'loss or damage if any under each policy shall be payable to (1) First Federal Savings & Loan Assn.' in Hattiesburg, Miss., in accordance with, and conformably to, the provisions of Section 5695, Code of 1942.

Thereafter when the property was sold to the plaintiff Frank Koch on May 15, 1950, he assumed the indebtedness of nearly $2,000 which was owing by Mr. and Mrs. Bond to the said First Federal Savings & Loan Ass'n. The plaintiff did not then have the insurance policies assigned to him by the insured, but he testified that he did not arrange for insurance on the property 'because I understood there was insurance on it', and that during the latter part of May, 1950, or the early part of June of that year, and prior to the total destruction of the building, furniture and equipment by fire, on July 10, 1950, he went to the office of Jackson & Taylor at Gulfport, Mississippi, and informed Mrs. Taylor that he had purchased the property and would like to have the insurance changed to him and that she said she would attend to it.

The plaintiff further testified that after about three weeks had passed, and he had not heard anything further as to what had been done about the insurance policies, he sent an employee, Dick Bullock, to make inquiry in regard thereto, and Bullock testified that he went to the office of the insurance agency, and asked to see Mrs. Taylor, learned that she was absent from the office at that particular time, and was told by the man in the office that the 'papers had been sent off', and he testified that 'I told Mr. Koch.' The witness testified that he thought that the man he talked to was Mr. Jackson, and that this conversation occurred about the middle or the latter part of June 1950.

The plaintiff testified that thereafter, and before the fire occurred, he had another employee to inquire at the insurance office about the matter, and that it was reported to him that they were trying to get in touch with Mr. or Mrs. Bond; that the plaintiff had ample time to have obtained other insurance and would have done so except for his reliance upon the assurances given him by Mrs. Taylor on his first visit to her office that the policies would be changed to conform to the changed ownership of the property, although it appears that they were then in the possession of the First Federal Savings & Loan Ass'n at Hattiesburg, as mortgagee.

Mrs. Taylor testified at the trial that she did not know of the change of ownership prior to the fire, and that she had not had any conversation with the plaintiff or either of his said employees in regard to the insurance, and had never seen the plaintiff prior to the trial.

Thus it will be seen that an issue of fact on conflicting testimony was presented to the jury on the question of estoppel.

The plaintiff concedes that the insurance policies do not operate in rem so that the title to the same would pass by a conveyance of the property. Hence it is unnecessary that we review the authorities cited by the defendant on that issue. The plaintiff relies solely upon the fact that he as purchaser of the property had failed to take out fire insurance on the same because he understood that there was already insurance on it, and relied upon the assurances of the general agent of the companies that the policies would be changed to him and that he would be protected. Except for Section 5706, Code 1942, and the decisions of this Court construing the same, together with the alleged conversation with the local agent, and the holding that such an agent may waive written provisions of a policy and thereby bind the insurer, there would be no question but what the defendants in these cases would have been entitled to a directed verdict in their favor under the authorities cited in their briefs, since there was no assignment of the policies to the plaintiff by either Mr. or Mrs. Bond until after the fire, no written consent of the insurer to such an assignment, and no request by either of the Bonds that the policies be transferred to the purchaser of the property. Nor did Mrs. Bond as the insured named in the policies have an insurable interest in the property at the time of the loss. The question is whether or not the plaintiff on the ground of an estoppel became the insured in lieu of Mrs. Bond by reason of the alleged understanding had between the plaintiff and the general agent prior to the loss.

The unearned portion of the premium on each of the policies, amounting to approximately $74 in each instance, was tendered by the defendants and paid into the registry of the court, but there had been no offer to return the unearned portion of the premiums to either the insured or to the plaintiff prior to the filing of the suits.

The premiums on each of the policies had been paid in full by the insurance firm of Jackson & Taylor to the respective insurers. The agency had collected the entire amount of the premiums from Mr. Bond when the policiess were issued, less $150 for which he executed a contractual obligation to the Hancock County Bank at Gulfport, pursuant to which he was to pay the bank $157.50 as principal and interest. This obligation of Bond to the bank was endorsed by Jackson & Taylor, and it appears that they then received the money obtained by Bond from the bank to reimburse themselves to that extent for the portion of the premiums paid to the insurers, and not otherwise paid by the insured, all prior to the destruction of the property by fire; that in August 1950 after the fire the plaintiff supplied Mr. Bond with the necessary funds with which to discharge the obligation at the bank; that Mr. Bond then went to the office of the...