Fidelity-Phenix Fire Ins. Co. v. Redmond.

• Citation: 107 So. 377,144 Miss. 749
• Decision Date: 15 March 1926
• Docket Number: 25155
• Court: United States State Supreme Court of Mississippi
• Parties: Fidelity-Phenix Fire Ins. Co. v. Redmond.[*]

107 So. 377

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.)

1. INSURANCE. Condition held waived, by general agent issuing policy with knowledge of use of gasoline on premises, and at a premium corresponding to risk therefrom.

Condition of policy prohibiting the keeping or use of gasoline on premises was waived by general agent of company issuing policy with knowledge of use of gasoline in a business conducted in the building, and at a premium in accordance with the risk from such use.

2. INSURANCE. Right from waiver of gasoline clause by agent, with knowledge, issuing policy held not lost by nonwaiver agreement, on which amount of loss was submitted to arbitration.

Nonwaiver agreement on which amount of loss was submitted to arbitrators, in view of its declared purpose to preserve the rights of all parties, did not destroy insured's right from waiver of gasoline clause by company's general agent issuing policy with knowledge of, and at rate corresponding to, risk from use of gasoline in business on premises.

3. INSURANCK. Risk held not shown increased to knowledge of insured by his tenant's use of charcoal burner after he had ordered it out.

Provision of policy against increase of hazard by means within insured's control, or knowledge, was not shown violated by presence of a charcoal burner in tenant's possession, testimony being undisputed that insured had ordered it out, and that it was [144 Miss. 750] then removed, and that he never knew that it was thereafter in the building.

4. INSURANCE. Electric ceiling fans and electric chandeliers field, by reason of nature of their attachment, covered by policy on building.

Electric ceiling fans and electric chandeliers, being so attached to the insured building that they could not be removed without damaging or defacing it, were covered by the policy.

5. INSURANCE. Metal shed over sidewalk held excluded from policy on building as an "awning."

A metal shed, attached to insured building, and extending over sidewalk, is within clause of policy excluding liability for loss to "awnings."

ON SUGGESTION OF ERROR.

6. INSURANCE. Forfeiture from breach of condition of policy held waived by adjuster, with knowledge, negotiating for adjustment, without suggesting breach. Where.insurer's adjuster, with knowledge of breach of condition of fire policy against presence of gasoline on the premises, without suggesting forfeiture, entered into long negotiations with insured for adjustment, encouraging him to submit estimates, which was done at considerable expense, there was a waiver of forfeiture.

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.

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, [144 Miss. 751] 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 nonwaiver 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. [144 Miss. 752]

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 un-enforcible "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 [144 Miss. 753] Fed. 500, 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. [144 Miss. 754]

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...