Hartford Fire Ins. Co. v. Williams

• Decision Date: 02 January 1933
• Docket Number: 30304
• Citation: 145 So. 94,165 Miss. 233
• Court: Mississippi Supreme Court
• Parties: HARTFORD FIRE INS. CO. v. WILLIAMS et al

145 So. 94

165 Miss. 233

HARTFORD FIRE INS. CO. v. WILLIAMS et al

No. 30304

Supreme Court of Mississippi

January 2, 1933

Division B

1 INSURANCE.

Amount of fire insurance fixed by valued policy became payable on establishment of total loss.

2. NEW TRIAL.

Where there was total loss but jury did not allow amount of insurance need in valued policy, court properly set aside verdict as contrary to evidence.

3 INSURANCE.

Agent's knowledge acquired while acting for purpose for which he is employed is insurer's knowledge.

4. APPEAL AND ERROR.

Supreme Court is bound by jury's finding as to conflict in evidence.

5 INSURANCE.

Where insured's farm products and tools destroyed were subject to valuation of three-fourths of value, verdict finding four hundred dollars as reasonable market value thereof required judgment as to such items for only three hundred dollars.

6. APPEAL AND ERROR.

Where verdict was plain and judgment could have been corrected in accordance with its meaning on face of record, it could be corrected in Supreme Court on appeal.

HON. W. J. PACK, Judge.

APPEAL from circuit court of Jones county, HON. W. J. PACK, Judge.

Action by R. F. Williams and others against the Hartford Fire Insurance Company. From a judgment for plaintiffs, defendant appeals. Affirmed with remittitur.

Affirmed with remittitur.

Welch & Cooper, of Laurel, and Watkins, Watkins & Eager, of Jackson, for appellant.

Where a statutory law of this state is involved in the trial of a law suit it is the duty of the counsel seeking the benefit of such statute, to see that the jury is instructed regarding it.

Lindsey Wagon Co. v. Nix, 108 Miss. 814, 67 So. 459.

No error can be predicted on the commission of the trial court to instruct the jury on any point where there was no request for an instruction, and if that be true, then there was no error on which the trial court could order a new trial.

G. & S. I. R. R. Co. v. Simmons, 121 So. 144, 153 Miss. 327; Masonite Corporation v. Lochridge, 140 So. 223; A. & V. Ry. Co. v. McGee, 78 So. 296, 117 Miss. 370; Humphreys County v. Washington County, 90 So. 710, 128 Miss. 132.

It was the duty of counsel upon each side to prepare in writing and present to the judge written instructions touching the rules of law applicable to the case, including the measure of damages.

Watkins v. State, 60 Miss. 323; Bangs v. State, 61 Miss. 363; Bacon v. Bacon, 76 Miss. 458, 24 So. 968; Grand Trunk Western Ry. Co. v. Gilpin C. C. A., 208 F. 126; City of Oakland v. Wheeler, 168 P. 23; Shannon v. Light & Power Co. 287 S.W. 301; Danville Lb. Co. v. McArthur, 137 S.E. 294.

A litigant cannot neglect the duty of submitting to the court appropriate instructions governing the measure of damages and then complain of the verdict for the alleged reason that the recovery was inadequate.

As to the assured, the policy sued upon was void by reason of a false statement made in the contract of insurance and the breach of promissory warrant therein contained.

Home Ins. Co. v. Cavin, 137 So. 490, 162 Miss. 1; Springfield Fire Insurance Co. v. Nix, 138 So. 598.

Appellee solemnly contracted with the appellant that he had never given different information or made a contrary or different statement to any person whatsoever, and that the statement contained in the application signed by him, warranted to be true, might be relied upon by the company, and if false, the policy should be void and there was a breach thereof.

Northern Assurance Company v. Grand View Building Association, 183 U.S. 308, 46 L.Ed. 213; Fountain & Herrington v. Mutual Life Insurance Co., 55 F. 120; Sun Insurance Office v. Scott, 284 U.S. 177, 76 L.Ed. 229.

There is no reason why a corporation, which necessarily contracts through agents, but may have agents of superior or inferior authority, should not 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, nor any waiver not authorized by them.

New York Life Ins. Co. v. O'Dom, 56 So. 379, 100 Miss. 219.

A party who accepts an insurance policy is bound to know, and is chargeable with, the provisions of the policy.

Germania Life Ins. Co. v. Bouldin, 56 So. 609, 100 Miss. 660.

Truly v. Mutual Ins. Co., 108 Miss. 453, 66 So. 970; Con Cas. Co. v. Hall, 118 Miss. 871, 90 So. 355.

An insurance company has a right to limit the authority of its agent, and when an insured has notice of the limitation of authority of such an agent, then the knowledge of its agent that material warranties have been breached or are untrue is not to be imputed to the company, and the company will not be deemed to have waived the condition or be estopped to declare the policy void.

Royal Ins. Co. v. Poole, 138 S.E. 487.

Even if appellee's position be correct that the agent agreed to omit reference to more than one of the fires, this was a fraud upon the company, to which the appellee was a party, and no recovery can be had.

American Cent. Life Ins. Co. v. National Bank, 90 So. 294; Johnson v. Aetna Ins. Co. 107 A. S. R. 111; Mudge v. Independent Order of Foresters, 14 L.R.A. (N.S.) 279; Maier v. Fidelity Mutual 78 F. 570; New York Life Ins. Co. v. Fletcher, 117 U.S. 519, 29 L.Ed. 934; Mutual Life Ins. Co. v. Hilton, 241. U.S. 613, 60 L.Ed. 1202; Adler v. New York Life Ins. Co. 33 F. 827; Zeilman v. Central Mutual Insurance Ass'n., 22 S.W. 88; Stiegler v. Eureka Life Ins. Co., 127 A. 297; Emery v. New York Life Ins. Co., 295 S.W. 571; Ayers v. Business Men's Insurance Company, 146 S.E. 147.

The jury expressly found in their verdict that the actual market value was four hundred dollars. Yet, totally disregarding the contract of insurance and the law, the judgment was rendered upon and allowed to stand for the full market value of such products and tools. The verdict should have been corrected by being reduced to the extent of one hundred dollars.

Collins & Collins, of Laurel, for appellees.

An agent is defined by statute.

Section 5196, Code of 1930.

There can be no question with reference to the authority of the agent who wrote the application in this case.

Hartford Fire Insurance Company v. Clark, 154 Miss. 418, 122 So. 551.

If the agent of an insurance company be fully advised of the facts and writes false answers to the inquiries contained in the written application his principal cannot avoid the policy because of such answers.

Fidelity Casualty Company v. Cross, 95 So. 631; Hartford Fire Insurance Co. v. Clark, 154 Miss. 418, 122 So. 551.

When real property, buildings, and household and kitchen furniture insured against loss by fire and situated within this state are totally destroyed by fire the company shall not be permitted to deny that the property insured was worth at the time of issuing the policy the full value upon which the insurance is calculated and the measure of damages shall be the amount for which the property was insured.

Section 5183, Code of 1930.

The court was right in setting aside the verdict with reference to the damages, because the evidence showed that it was a complete loss made the amount of recovery liquidated damages which could not be reduced by the jury.

Section 5183, Code of 1930; Assurance Company v. Phelps, 77 Miss. 658, 27 So. 757; Mississippi Home Insurance Company v. Barron, 45 So. 875.

The court has authority to set aside a verdict as to damages and grant a new trial on damages alone.

Section 592, Code of 1930; Y. & M. V. R. R. Co. v. Scott, 67 So. 491.

The court has authority to set aside a verdict when manifest injustice has been done. If the jury was right in finding for plaintiff at all it certainly was wrong and manifestly wrong in reducing the damages below the amount the law fixes.

Taylor v. Sorsby, W. 97; LeFlore v. Justice, 1 S. & M. 381.

If, in ordinary cases the verdict is contrary to the evidence or the law a new trial may be granted.

Prussel v. Noles, 4 H. 90; Perely v. Ligram, 1 Miss. 542.

The issues in the case, the evidence in the case, and the instructions may all be taken into consideration to determine what the verdict of the jury is, if there is a doubt as to the meaning of the verdict.

Thornton v. Lucas, 29 So. 400; Jones v. State, 29 So. 405.

The verdict says fourteen hundred dollars plus four hundred dollars. The word three-fourths is not used in the verdict. If they had meant to find a verdict that the full market value of the farm products and tools destroyed by fire was only four hundred dollars, then they certainly would have written into the verdict that they found for the plaintiff in the sum of fourteen hundred dollars plus three-fourths of four hundred dollars.

Argued orally by W. H. Watkins, Jr., for appellant, and Floyd O. Collins, for appellee.

OPINION

Ethridge, P. J.

R. F. Williams, appellee, took out a farm policy with the Hartford Fire Insurance Company for eight hundred dollars on his dwelling; two hundred dollars on household and kitchen furniture; four hundred dollars on barn and sheds; one hundred fifty dollars on grain and seeds of all kinds; fifty dollars on hay, straw, and fodder; and two hundred dollars on farm machinery and implements.

The agent of the Hartford Fire Insurance Company took an application for insurance from Williams, and wrote down Williams' answers to questions in the application. The agent then mailed the application to the Atlanta office of said company, and the policy was issued and sent to the agent at Laurel, Mississippi, who delivered it to Williams.

The property insured was destroyed by fire and this suit was brought to recover the amount of the insurance. The defendant, Hartford Fire Insurance...