Home Ins. Co. of New York v. Gibson

• Citation: 72 Miss. 58,17 So. 13
• Court: Mississippi Supreme Court
• Decision Date: 19 November 1894
• Parties: HOME INSURANCE CO. OF NEW YORK v. J. GIBSON

17 So. 13

72 Miss. 58

HOME INSURANCE CO. OF NEW YORK v. J. GIBSON

Supreme Court of Mississippi

November 19, 1894

FROM the circuit court of Holmes county, HON. C. H. CAMPBELL Judge.

The opinion sufficiently states the case to indicate the questions decided. As to the application for a continuance the decision seems to depend entirely upon a question of fact. Therefore, it is not deemed necessary to make any statement in regard to this, or to give the argument of counsel on the point.

Affirmed.

E. F Noel, for appellant.

In his declaration appellee concedes, ths warranty of fee simple title to the property, but changes the description of title from fee simple to the unconditional ownership for a term of years. The policy is filed as a part of the declaration, and overthrows the allegation therein as to the character of the title.

Every agent of an insurance company is not a general agent. One may have considerable power, and yet not be authorized to bind the company on account of information communicated to him. Insurance Co. v. Sorsby, 60 Miss. 302; Insurance Co. v. Van Os, 63 Ib., 431.

Knowledge of the contents of the policy is imputed to the insured. 5 Am. St. R., 63; 15 Ib., 275; 28 Ib., 645.

Contracts of insurance are to be regulated and determined by the same rules that govern other ordinary agreements. Insurance Co. v. Ingram, 34 Miss. 215; Insurance Co. v. LeFlore, 53 Ib., 1.

The powers possessed by agents of insurance companies are to be interpreted in accordance with the general law of agency. If one dealing with an agent knows that he is acting under limited authority, and that his act is outside the authority conferred, the principal is not bound, and it is immaterial whether the agent is a general or special one. Walsh v. Insurance Co., 73 N.Y. 5.

Where a policy permits an agent to exercise a specified authority, but prescribes that the company shall not be bound unless the execution of the power shall be in writing, the consent of the agent, not so indorsed, is void. Ib.; Marvin v. Insurance Co. 85 N.Y. 278: 38 Am. R., 657. See also 19 Or. 261; 20 Am. St. R., 809; 28 Ib., 648; 133 N.Y. 356.

In Insurance Co. v. Matthews, 65 Miss. 301, while the court declined to hold the insured bound by an agreement in the policy that all waivers had to be indorsed thereon, to the extent of refusing to recognize acts of waiver after a loss, it declined to go to the extent of nullifying the provisions which relate to the formation and continuance of the contract of insurance and are essential to the binding force of the contract while running.

The principal office of an insurance company is generally distant from the field of operation of agents. To hold the company liable for all prior information possessed by agents as to the nature or condition of insured property, and to bind them by waivers which it is mutually agreed shall never be set up, is to place the company at the mercy of collusive arrangements, and to deny it the benefit of contractual arrangements elsewhere universally recognized.

It is a settled legal principle that a contract of insurance only binds the insurer to make good the loss sustained by the party insured. The contract is a personal one between the parties. Lynch v. Daly, 3 Brown's Parl. Cases, 497. It is the individual insured, and not the property. Different parties having different interests in the same subject-matter may severally procure insurance on their respective interests, but the mere fact of a person being part owner of the property does not give him an insurable interest in that part he does not own. 11 Am. & Eng. Enc. L., 313, and authorities cited. In the instructions in this case the court refused to recognize this doctrine.

Hooker & Wilson, for appellee.

The defendant denied all liability under the policy, on the ground that the building was on leased land. This obviated all necessity for making proof of loss. 2 Woods on Insurance, 445, 446, 967, 973; 7 Am. & Eng. Enc. L., p. 1997; Insurance Co. v. Comfort, 50 Miss. 662.

The same is true with respect to the provision for arbitration. 2 Woods on Insurance, 1009, 1015; 78 Pa. 478; 20 Mich. 431.

The agent, knowing that Gibson was only lessee, received his money as premium and issued the policy. This bound the company. 1 Woods on Insurance, 207, § 90, and authorities cited; 7 Am. & Eng. Enc. L., p. 1024; 93 Ill. 96; 23 Hun (N. Y.), 397; 79 N.Y. 230; 33 Mich. 143; 57 Ib., 135; 79 Ib., 249.

Plaintiff was entitled to recover the full amount of the policy. The company had no connection with the lease. It contracted with Gibson to pay him the value of the house. 2 Woods on Insurance, § 481; 2 May on Insurance, § 424; 1 Hill (N. Y.), 140; 135 Mass. 503.

It is entirely immaterial with the company what the respective rights of the plaintiff and his lessor were. The lessor may recover a part of the money from Gibson, but the company must pay him, according to its contract.

OPINION

WHITFIELD, J.

We cannot say there was any abuse of discretion in refusing the continuance.

The two grounds of defense mainly relied on are: First, that the appellee was not the owner in fee simple of the ground on which the building, the subject of insurance, was situated; and, second, that the interest of the insured was "other than the unconditional and sole ownership" of the building.

Appellee testified that W. A. Drennan, Jr., the agent with whom the contract of insurance was made, was in (to use his language) "my house a few days before, and I told him all about the lease, and asked him to make out for me a policy on the new store, as it was a part of the contract." Again he says: "W. A. Drennan, Jr., sent me the policy, which remained in force twelve months. I wrote to him to renew my policy whenever it expired, and that this policy in question, thus written for to W. A. Drennan, Jr., came by mail a few days later," Drennan living at Greenwood and appellee at Tchula. Appellee had leased the ground from December 1, 1890, to December 1, 1894, the house built to be the property of the lessor after the expiration of the lease, and the insurance premiums were to be paid by lessor and lessee equally, "yearly," and, in case of loss by fire, the amount of insurance was to be divided in proportion to the life of the lease, as set out in the lease. This policy of insurance was operative from January 27, 1892, to January 27, 1893. The fire occurred January 24, 1893, only three days before the end of the year for which the building was insured. The testimony of appellee on this point stands uncontradicted; but the contention is that the agent had no right to bind the company by any knowledge he thus obtained from appellee at the time of the execution of the original policy of insurance, and which, of course, he had when this policy was issued, because of the stipulation in the policy in these words: "This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions . . . as may be indorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy, except such as, by the terms of this policy, may be the subject of agreement indorsed hereon or added hereto; and, as to such provisions and conditions, no officer, agent or representative shall have such power, or be deemed to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto."

It is insisted that the waiver of the requirement that appellee's real interest should be set out in the policy by the conduct of its agent, W. A. Drennan, Jr., who issued the policy and received the premium, after he was fully informed of all the lease showed, cannot be shown by parol, and cannot bind the company. This contention has been thoroughly considered by this court and settled adversely to appellant in Sheffy's Case, 71 Miss. 919, 16 So. 307, and in Matthews Case, 65 Miss. 301, 4 So. 62; Rivara's Case, 62 Miss. 720, 727; Bowdre's Case, 67 Miss. 620, 631, 7 So. 596. The very pith of the true reasoning on this subject is condensed into this single sentence of the supreme court of Michigan, 33 Mich. 143, quoted with approval by Judge Campbell in Matthews' Case: "There can be no more force in an agreement in writing not to agree by parol, than in a parol agreement not to agree in writing. Every such agreement is ended by the new one which contradicts it." And this is true as well of the provisions which relate to the formation and binding force of the contract while running, as to those provisions relating to what has to be done after a loss. 11 Am. & Eng. Enc. L. 343, note 1, and page 338, paragraph 4, and authorities in note 2, p. 339. The case of Cleaver v. Insurance Co., 65 Mich. 527, 32 N.W. 660, whilst properly distinguishing the case of Insurance Co. v. Earle, 33...