Home Ins. Co. v. Watts
| Decision Date | 07 January 1957 |
| Docket Number | No. 40336,40336 |
| Citation | 91 So.2d 722,229 Miss. 735 |
| Parties | The HOME INSURANCE COMPANY v. Turner WATTS and Universal C. I. T. Credit Corporation. |
| Court | Mississippi Supreme Court |
Watkins & Eager, Jackson, Tate Thigpen, Picayune, for appellant.
Morse & Morse, Poplarville, for appellees.
On December 1, 1953, appellant issued to Turner Watts a standard automobile policy insuring his 1951 Mercury automobile against fire and other perils to the extent of its actual cash value until December 1, 1955. This policy contained the standard clause pertaining to an appraisal in the event of damage or destruction to said automobile, which clause is as follows:
'The company shall not be held to have waived any of its rights by any act relating to appraisal.'
In addition, the policy provides:
'Payment for Loss; Action Against Company--Payment for loss may not be required nor shall action lie against the Company unless, as a condition precedent thereto, the Named Insured shall have fully complied with all the terms of this policy nor until thirty days after proof of loss is filed and the amount of loss is determined as provided in this policy.'
On March 27, 1955, the automobile in question was damaged by fire to the extent that it was almost a total loss. Notice was immediately given to the Company in accordance with the terms of the policy by an attorney representing Watts. On May 16, 1955, the Company notified attorneys for the appellee that inasmuch as they had failed to agree as to the actual cash value and the amount of loss to said automobile it demanded that he select a competent and disinterested appraiser and notify appellant of his name within twenty days after receipt of said demand. The Company also advised that it had selected Mr. R. A. McKenzie of Hattiesburg, Mississippi, as its appraiser and that as soon as appellee's selection is made known to the Company the actual cash value and the amount of loss could be appraised without delay in accordance with the provisions of the policy. On May 20, 1955, the Company also notified the appellee Turner Watts in writing to the same effect. On May 24, 1955, the attorneys for appellee submitted to the Company the name of Virgil East of Poplarville, Massissippi, as the appellee's appraiser. The Company replied on May 27, 1955, and sent to appellee's attorneys a document entitled 'Automobile Appraisal Agreement' and requested that the same be executed in the presence of two witnesses and returned to the Company. On May 31, 1955, the appellee's attorneys notified the Company that the appellee would not sign any agreement but that he is willing to proceed under the provisions of the policy. On June 9, 1955, the Company acknowledged receipt of the letter of May 31 and said that it had requested Mr. McKenzie, its appraiser, to contact Mr. Virgil East, the insured's appraiser, and proceed with the appraisal. On June 10, 1955, appellee's attorneys advised the Company that they were contacting Mr. East and would let the Company know what date would be suitable for the appraisal. On June 20, 1955, appellee's attorneys wrote the Company that any day except Monday or Thursday would be agreeable to Mr. East and requested that he be advised a day or two in advance. On June 22, 1955, the attorneys for appellees wrote the Company and withdrew their agreement to arbitrate and further advised that unless an agreement of settlement was made within twenty days they intended to file suit on the claim. On September 8, 1955, the Company notified appellee's attorneys that they denied liability under the policy for the reason, first, that the insured had refused to comply with the appraisal provisions of the policy, and second, that the statements contained in the declarations as to the identity of the party holding the conditional sale contract covering the automobile were not true. On September 12, 1955, suit was brought for recovery of the value of and damage to the automobile in question in the amount of $1,400 and costs.
On September 28, 1955, the Company filed a demurrer to the declaration, which demurrer was overruled on November 7, 1955, and the appellant was granted until November 14, 1955, to answer. The answer was filed on November 12, 1955. It embodied as a first defense that the loss payable clause in the policy was in favor of Parkway Motors, the company which sold the automobile to appellee, and that Parkway Motors was a necessary party. Wherefore the defendant moved the court to abate or dismiss the cause for failure to join Parkway Motors as a party to the suit. At the trial it was shown that Parkway Motors had assigned the conditional sale contract to Universal C. I. T. Credit Corporation and that said corporation had applied for and obtained and paid the premium on the policy in question with full knowledge by appellant's agent. The first defense was abandoned and is not involved in this appeal.
The second defense in the answer was, first, that the statements to the appellant failed to show Universal C. I. T. Credit Corporation as being interested in the conditional sale contract but did show Parkway Motors as being interested therein and that the policy was issued in reliance upon the truth of said representations and that said false statements rendered the insurance contract null and void. Upon the trial on the merits this section of the second defense was abandoned and is not involved on this appeal. The second, third, fourth and fifth paragraphs of the second defense are in effect an admission of the issuance of the policy but a denial as to the value of or amount of damage to the automobile.
As a third defense the appellant pleaded the foregoing appraisal clause in the policy and charged that under said clause appellant had made written demand for an appraisal of the loss and had selected a competent and disinterested appraiser and that the appellee had likewise selected an appraiser on May 24, 1955, but that on June 22, 1955, had notified the Company that the appellee would not comply with said provision of said policy; that the appellee thereby prevented the appraisal to which the Company was entitled and that as a result thereof he is not entitled to recover any sum under the provisions of the policy.
The fourth defense is, in effect, a repetition of the first paragraph of the second defense.
At the trial Parkway Motors entered its appearance and disclaimed any interest in the suit. The appellee dictated into the record a joinder in short on the issues raised by any affirmative matter contained in the answer.
At the trial the appellees showed by an experienced automobile man who was familiar with the car in question that it was an extra clean car and better than the average for its age and that its value was between $1,150 and $1,120 immediately before the fire and that after the fire it was worth about $20 as junk. Another witness for appellee testified without any personal knowledge of the car but upon a description of the same and its condition that it was worth from $900 to $1,100 and that its value after the fire was from $20 to $30. Two witnesses for the appellant, who were not familiar with the automobile before the fire, testified that the average value at the time of the fire of a 1951 Mercury car was, according to one of them between $600 and $800, and according to the other, it was between $500 and $550. The second witness testified that he would have had to see the car at the time of the loss to give an accurate estimate of its value. Another witness for appellant who was in the automobile parts business testified that he made a written bid of $95 for the salvage, and a copy of this bid was introduced. The Adjuster for the appellant testified and introduced...
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Munn v. National Fire Ins. Co. of Hartford, 41206
...allowed a wide discretion as to the mode of procedure and sources of information.' We covered this point in the case of Home Insurance Co. v. Watts , 91 So.2d 722, 726 , not yet reported in the State 'The agreement which was signed for an appraisal is called 'Memorandum of Appraisal' and a ......
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CHAPTER 10
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