Hartford Fire Ins. Co. v. Clark

Decision Date27 May 1929
Docket Number27785
Citation122 So. 551,154 Miss. 418
CourtMississippi Supreme Court
PartiesHARTFORD FIRE INS. CO. v. CLARK et al

Suggestion of Error Overruled, June 28, 1929.

(En Banc.)

1 INSURANCE. Evidence held to sustain finding that agent, at time of application, had knowledge of condition of title or character of insured's ownership.

Evidence In action on fire insurance policy, held to sustain finding that agent for insurer had knowledge of condition of title or character of ownership of insured at time of making out and forwarding application for insurance.

2 INSURANCE. Insurance company is bound by knowledge of agent within scope of authority, notwithstanding contrary provision in application or policy.

An insurance company is bound by knowledge of, or notice to, its agent within general scope of his authority, notwithstanding a contrary provision in application or policy.

3. INSURANCE. Ordinarily, knowledge acquired by insurer's soliciting agent in course of employment is imputed to insurer (Hemingway's Code 1927, section 5873).

Under Code 1906, section 2615 (Hemingway's Code 1927, section 5873), knowledge acquired by a soliciting agent in the course of his employment of soliciting insurance, preparing and transmitting applications, delivering policies, etc., is ordinarily imputed to insurance company.

4. INSURANCE. Insured's failure to introduce proof of value did not preclude recovery on fire policy, regardless of extent of insurable interest (Hemingway's Code 1927, section 5850).

Under Code 1906, section 2592, as amended by Laws 1912, chapter 224 (Hemingway's Code 1927, section 5850), providing that, in case of total destruction of real property or buildings by fire, insurance company shall not be permitted to deny that property was worth full value on which insurance was calculated, the failure of insured to introduce proof of value did not preclude recovery, regardless of whether the only insurable interest in property was that of use and occupancy.

5. INSURANCE. Court properly allowed reformation of fire policy describing property as being in another county due to agent's error in making application.

Where description of property in fire insurance policy as being in a different county than that in which property was actually situated was due to mistake insurer's agent in making out application in his office, the court properly allowed a reformation of the policy.

Suggestion of Error Overruled, June 28, 1929.

APPEAL from chancery court of George county.

HON. D. M. RUSSELL, Chancellor.

Action by A. J. Clark and another against the Hartford Fire Insurance Company. Decree for plaintiffs, and defendant appeals. Affirmed.

Decree affirmed.

T. H. Byrd, of Lucedale, and R. L. McLaurin, of Vicksburg, for appellant.

In order to warrant a decree reforming a fire insurance policy so as to locate the subject of insurance in one county rather than in another county as shown in the policy, the petitioner must show that there was a material mistake or fraud beyond a reasonable doubt.

Rogers v. Clayton, 115 So. 106, 149 Miss. 47; Cathcart v. Aldridge, 109 So. 700, 144 Miss. 178; Progressive Bank of Summitt v. McGehee, 107 So. 876, 142 Miss. 655.

It is the duty of assured to acquaint himself with his contract and when he accepts and retains the policy and is an intelligent man he is bound by its terms.

Bouldin case, 100 Miss. 677; New York Life Insurance Co. v. O'Dom, 56 So. 379; Insurance Co. v. Pittman, 111 Miss. 420; Hartford Fire Insurance Co. v. McCain, 141 Miss. 394; Newman v. National Fire Insurance Co., 118 So. 295.

A recovery for the full value of a residence should not be allowed, when it appears without dispute that at the time the policy was issued and the fire occurred, the only insurable interest of the assured was that for use and occupation.

1 Cooley's Briefs on Insurance, par. 1, page 781; Michael v. Prussian Nat. Insurance Co., 171 N.Y.S. 918, 64 A.D. 182; Tananbaum v. Froundlish, 81 N.Y.S. 292, 39 Misc. 819; Same v. Simon, 81 N.W.Supp. 665, 40 Misc. 174, 82 N.Y.S. 1116, 84 A.D. 642; 1 Cooley's Briefs on Insurance, page 1336; 3 Joyce on Insurance, page 3407, sec. 2030; Dakin v. Liverpool & London & Globe Ins. Co., 77 N.Y. 600; Lasher v. St. Joseph Fire & Marine Ins. Co., 86 N.Y. 423; Lasher v. Northwestern National Ins. Co., 51 N.Y. 222, 18 How. (N. Y.) 96; 23 C. J., page 360, sec. 6; 1 Cooley's Briefs on Insurance, page 108.

An insurance company can stipulate, in any contract executed in its behalf, that its provisions can be varied by no notice or representations not brought home to the actual knowledge of one of its principal officers.

Van Os and Shuster v. L. & L. & G. Insurance Co., 63 Miss. 431; L. & L. & G. Insurance Co. v. Sorsby, 60 Miss. 392; New York Life Ins. Co. v. O'Dom, 100 Miss. 219.

The soliciting agent of an Insurance Company has no authority to vary the terms of a policy, nor to bind the company by representations as to what the policy will contain.

Knight v. Hartford Fire Insurance Co., 142 Miss. 382; Truly v. Insurance Co., 108 Miss. 453; The Merchants Union Fire Insurance v. Johnson, 135 Miss. 311.

It is the duty of an assured to acquaint himself with the terms and conditions of his contract and the acceptance and retention of an insurance contract is a ratification of the same and is binding on the assured.

Hartford Fire Insurance Co. v. McGain, 141 Miss. 400, 106 So. 529; Rosenstock v. Insurance Co., 82 Miss. 674, 35 So. 309; Groce v. Phoenix Ins. Co., 94 Miss. 201, 48 So. 298; 22 L. R. A. (N. S.) 732; Bacot v. Insurance Co., 96 Miss. 223, 50, So. 729, 25 L. R. A. (N. S.) 1226, Ann. Cas. 1912B, 262; Insurance Co. v. Pittman, 111 Miss. 420, 71 So. 739.

O. F. Moss, of Lucedale, for appellees.

Mutual mistakes of the parties in any sort of contract may be corrected, and such contract may be reformed so as to carry out the mutual intention of the parties.

McAllister v. Richardson, 103 Miss. 418, 66 So. 570; Brimm v. Magee, 119; Miss. 52, 80 So. 379.

The case of Big Creek Drug Co. v. Insurance Co., 115 Miss. 333, 75 So. 768, is good law, even if the agent obtaining the policy for the company was no more than a soliciting agent.

The insurance company having knowledge through its general agent of the true condition of appellees' title to the building insured and to the land on which it is situated is liable against loss by fire for the full amount of the policy. Sec. 5850, Hemingway's Code of 1927.

Where the agent of an insurance company is fully advised of the facts and writes or advises false answer to the inquiries contained in the written application, his principal cannot avoid the policy because of such answers.

Mutual, etc., Assn. v. Ogletree, 25 So. 869; Insurance Co. v. Antrom, 38 So. 626.

Where an insurance company, which with full knowledge of the facts, issues to one having only a leasehold interest in a building a policy insuring the entire interest, cannot, in case of loss, limit the recovery of the assured to his interest. The company is bound by its policy and has no concern with any outside contract between the assured and his lessor as to their respective interest in the property.

Insurance Co. v. Gibson, 17 So. 13.

Where the general agent of the company assumed the preparation of the application and contract of insurance, the company cannot take advantage of the failure to express any fact which was duly communicated by the insured and omitted or misrepresented by the neglect, mistake or design of the agent.

Insurance Company v. Myers, 55 Miss. 479.

GRIFFITH, J. ETHRIDGE, J., dissents. Chief Justice SMITH dissents, and concurs in most of what Justice ETHRIDGE has said.

OPINION

GRIFFITH, J.

On the 6th day of August, 1926, appellant executed a policy of fire insurance known as a Mississippi farm policy, by which it undertook to insure the appellees on a certain dwelling house located twenty-eight miles west of the town of Lucedale. The policy was for a period of five years, and was for the face amount of one thousand dollars, although in the clause naming the insured there was the following recital: "Does insure J. A. Allman and A. J. Clark as interest may appear." The policy recites the usual terms found in farm fire insurance policies, and of these the following are made issues in the case:

"This insurance is based upon the statements contained in the assured's application and diagram of even number herewith in the Company's Southern Farm Department office at Atlanta, Georgia, each and every statement of which is hereby specifically made a warranty and a part hereof, and it is agreed that this entire policy shall be void if the assured has concealed or misrepresented in writing or otherwise any material factor circumstances concerning this insurance or the subject thereof, or if the interest of the assured be not truly stated therein."

"This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void . . . if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple."

"In any matter relating to this insurance no person, unless duly authorized in writing, shall be deemed the agent of this company. . . . But this policy or any endorsements thereon, or attached thereto, of any kind, shall not be valid until countersigned by the general agent or superintendent of the Southern Farm Department of Atlanta, Georgia, who alone shall have power or authority to waive or alter any of the terms or conditions of this policy or to make or attach endorsements hereon."

"This policy is made and accepted subject to the foregoing stipulations and...

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