Fidelity-Phenix Fire Ins. Co. v. Redmond

• Decision Date: 15 March 1926
• Docket Number: 25155
• Citation: 111 So. 366,144 Miss. 749
• Court: Mississippi Supreme Court
• Parties: FIDELITY-PHENIX FIRE INS. CO. v. REDMOND. [*]

111 So. 366

144 Miss. 749

FIDELITY-PHENIX FIRE INS. CO. v. REDMOND. ^[*]

No. 25155

Supreme Court of Mississippi

March 15, 1926

Division A

Suggestion of error overruled Feb. 21, 1927.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Action by S.D. Redmond against the Fidelity-Phenix Fire Insurance Company. Judgment for plaintiff for less than claimed, and defendant appeals, and plaintiff brings cross-appeal. Affirmed.

Judgment affirmed on direct and cross appeal. Suggestion of error overruled.

Watkins Watkins & Eager, for appellant.

I. The directed verdict requested by the appellant should have been given. The non-waiver agreement entered into between A. J Miazza, adjuster for the appellant, and the appellee expressly provided against any waiver and by virtue of its execution preserved all the defenses of the company in respect to said policy; and, consequently, a verdict should have been directed in favor of the appellant.

This court has heretofore expressly decided that an effort to compromise by offering to pay a sum less than the amount claimed will not constitute a waiver. N. O. Ins. Ass'n v. Matthews, 65 Miss. 313.

It is our contention that even if a waiver had been committed by the adjuster prior to the execution of the non-waiver agreement, that by joining in the execution of a non-waiver agreement thereafter, the insured himself waived the waiver and became bound by the terms of the non-waiver agreement.

See 26 C. J., page 393, paragraph 505, for the general subject of estoppel and waiver. See, also, Ins. Co. of North America v. Caruthers (Miss.), 16 So. 911; Tedder v. Home Ins. Co. (Ala.), 103 So. 674.

The courts have uniformly sustained the validity of non-waiver agreements and also the stipulation of the policy that the insurer shall not be held to waive its rights or any provision of the policy by investigating the loss or by demanding an appraisal or arbitration or by requiring an examination of the insured under oath. 26 C. J. 405, paragraph 519, and cases there cited.

It has also been expressly held that an agreement and submission to appraisals and an award thereon under a non-waiver does not preclude the insurance company from setting up any defense it may have as to liability on the policy. Urbaniak v. Fireman's Ins. Co. of Newark, 116 N.E. 413, 227 Mass. 132; Neil Bros. Grain Co. v. Hartford Fire Ins. Co., 1 F. 2nd, 904.

We submit, therefore, that upon the execution of the non-waiver agreement between the representative of the appellant and the appellee himself a new agreement was entered into and any alleged waiver theretofore committed by the representative of the company then became waived itself by the appellee.

II. If the evidence was not sufficient to warrant the granting of the directed verdict requested by the appellant, the question should have been submitted to the jury on the weight of the evidence on appropriate instructions.

A. The question of whether or not the defense of the appellant had been waived by the acts and conduct of its adjuster, Mr. Miazza, should have been submitted to the jury as a question of fact because the testimony was conflicting. Insurance Companies v. Sorsby, etc., 60 Miss. 313, is recognized as a leading case on the question of waiver in respect to a fire insurance contract. See, also, McPike v. Western Ins. Co., 61 Miss. 42; New Orleans Ins. Ass'n v. Matthews, 65 Miss. 313; Greenwood Ice & Coal Co. v. Georgia Home Ins. Co., 72 Miss. 50; McFarland v. Kittanning Ins. Co., 134 Pa. St. 500, 19 A. S. R. 723, 19 A. 796. The fact that an appraisal was entered into for the purpose of establishing the amount of the loss has no bearing on the question of the final liability of the company. Riverside Development Co. v. Hartford Fire Ins. Co., 105 Miss. 213, 62 So. 169.

B. By the terms of the policy it became void and unenforcible "if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used or allowed on the above described premises benzin, benzol, dynamite, ether, fireworks, gasoline. . . ." The presence of gasoline, as shown by the record, constituted, therefore, a defense to a suit on the policy unless this defense had been waived by the appellant through its adjuster, and which was a matter to be submitted to the jury as the evidence was in direct conflict as to whether the adjuster had committed a waiver. Rivers v. Queen's Ins. Co., 62 Miss. 720; Liverpool, London & Glove Ins. Co. v. Van Os & Shuster, 63 Miss. 441; Westchester Fire Ins. Co. v. Oceanview Pleasure Pier Co., 106 Va. 633; London & L. Fire Ins. Co. v. Fischer, 92 F. 600, 34 C. C. A. 503; Arnold v. American Ins. Co., 84 P. 182, 148 Cal. 660; Norways v. Thuringia Ins. Co., 68 N.E. 551, 204 Ill. 334; Kohlman v. Salvage, 54 N.Y.S. 230.

The evidence clearly demonstrates that had it not been for the flagrant violation of the conditions of the policy in respect to the keeping and use of gasoline on the premises the fire would not have occurred. This is a risk and hazard which this appellant did not agree to cover and it should not now be held liable therefor.

C. By the terms of the policy it is also provided that it shall be void and unenforcible "if the hazard be increased by any means within the control or knowledge of the insured." The hazard having been greatly increased on account of the presence of a charcoal furnace with a fire in it and also taken in connection with the proximity of the gasoline, the policy was, therefore, rendered void unless a waiver had been committed by Mr. Miazza and which being in dispute was a matter that should have been submitted to the jury for decision. Leonard v. Northwestern Nat'l Ins. Co., 290 F. 318.

III. Irrespective of the above propositions, no recovery should have been allowed for the awning and electric light fixtures and ceiling fans.

A. The policy of insurance expressly provides, "This company shall not be liable for loss to accounts, etc., nor, unless liability is specifically assumed hereon, for loss to awnings. . . ." The trial court properly held that no recovery could be had for the awning because the language of the policy clearly and without ambiguity excluded the same.

B. The appraisers also included in their finding loss and damage to five electric ceiling fans and the electric chandeliers and fixtures. These being articles of personal property and not a part of the building, should not have been included and are not covered by the policy.

On first consideration it might appear that these light fixtures and ceiling fans were insured under the terms of the policy, but upon examination of the authorities, the rule is unvarying, both in England and in this country, that such articles are as much chattels as is an old fashion lamp that sat upon the table or any piece of furniture used about the premises. 11 R. C. L. 1078; Towne v. Fiske, 127 Mass. 125, 34 Am. Rep. 353; Capehart v. Foster, 61 Minn. 132, 52 A. S. R. 583; Rogers v. Cros, 40 Mo. 91, 93 Am. Dec. 300; McKeage v. Hanover Fire Ins. Co., 81 N.Y. 38, 37 Am. Rep. 471; Vaughen v. Haldeman, 33 Pa. St. 522; Hall v. Law Guarantee & Trust Soc., 22 Wash. 305, 60 P. 643, 79 A. S. R. 936. See, also, Jarechi v. Philharmonic Soc., 79 Pa. St. 403, 21 Am. Rep. 78; Montague v. Dent, 10 Rich. L. S. C. 135, 67 Am. Dec. 572; American Laundry Machine Co. v. Citizens National Life Ins. Co. et al., 107 Miss. 108, 65 So. 113; I. C. R. R. v. Green, 86 So. 814; Boone v. Mendenhall Lbr. Co., 97 Miss. 554, 52 So. 584; and Weathersby v. Sleeper, 42 Miss. 732.

Howie & Howie and Lamar F. Easterling, for appellee.

I. It needs no citation of authorities to show that an insurance company may waive any warranty provision or stipulation in the policy placed in said policy for their benefit. Counsel take the position that Redmond having signed a non-waiver of agreement, as shown by the record, on December 17, 1924, waived any prior waiver there might have been on the part of the insurance company through its agents. Counsel entirely overlooked the waiver as shown by the testimony of the general agent who wrote the policy. If Mr. Roberts, the general agent, knew that a pressing club was being operated in the building and that gasoline was generally kept and used in pressing clubs, then under the authorities of this and other states and on general principles of law, the company will be held to have waived that particular clause of the contract.

The acceptance and retention of the premium with full knowledge of the risks and all the facts will itself show a waiver of the condition. Rivara v. Queen Ins. Co., 62, Miss. 720. See, also, Liverpool, etc., Ins. Co. v. Sheffy, 71 Miss. 926, 16 So. 307; Mitchell v. Miss. Home Ins. Co., 72 Miss. 58, 18 So. 86, 48 A. S. R. 535; Home Ins. Co. of N. Y. v. Gibson, 72 Miss. 63, 17 So. 13; Liverpool, etc., Ins. Co. v. Farnsworth Lbr. Co., 72 Miss. 561, 17 So. 445; Sun Mut. Ins. Co. v. Searles, 72 Miss. 69, 18 So. 544

Paraphrasing the above cases, it would be shocking to allow an insurance company to accept the premium, leading an insured to believe that he was insured and then after the fire to claim that he could not collect because gasoline was used in a pressing club in the building, the agent who wrote the policy knowing at the time that a pressing club was being operated in the building and that gasoline was being used. On the question of retention of premium see Miss. Fire Ins. Co. v. Dobbins, 33 So. 506, 507. See, too, Mechanics & Traders Ins. Co. v. Smith, 79 Miss. 143, 30 So. 362.

In Fore v. U. S. Fire Ins. Co., 92 So. 628, Judge SMITH held that a tender of the premium was unnecessary in case of breach of the additional insurance clause of the policy.

In the Mount case, 44 So. 165, the court distingui...