Knight v. Hartford Fire Ins. Co.

Decision Date22 March 1926
Docket Number25564
Citation142 Miss. 382,107 So. 526
CourtMississippi Supreme Court
PartiesKNIGHT v. HARTFORD FIRE INS. CO. [*]

Division B

1. INSURANCE. In application for insurance on automobile, words "actual cost, seven hundred thirty dollars," held to mean cost of car as it stood at time it was insured.

Where an application for an insurance policy on an automobile represented the automobile to be secondhand, "actual cost seven hundred thirty dollars," and "fully paid for," and the testimony showed that the original purchase by the owner was one hundred seventy-five dollars with replacements and repairs bringing the cost up to seven hundred thirty dollars, the words "actual cost, seven hundred thirty dollars," do not mean the original cost but the cost of the car as it stood at the time it was insured.

2. INSURANCE. In action on insurance policy containing representation that car was worth seven hundred thirty dollars, on testimony that plaintiff had spent more than seven hundred thirty dollars on repairs and that when insured it was worth between eight hundred fifty and one thousand dollars and amount of insurance was five hundred dollars granting peremptory instruction for defendant insurance company was error.

Where the plaintiff brought suit on an insurance policy containing the representation shown in the opinion, and testified that he had spent more than seven hundred thirty dollars in bringing the car up to the standard it was at the time the insurance was taken out, and that his car was worth at the time it was insured between eight hundred fifty and one thousand dollars, and the amount of the insurance taken was five hundred dollars, it was error to grant a peremptory instruction for the defendant insurance company.

3. INSURANCE. On issue of fraud in procuring insurance excluding testimony that general agent for company saw car at time of taking out insurance and placed his own value thereon, without further representation than signing application, was error.

Where one of the issues in suit is whether fraud was used in procuring the insurance, testimony to the effect that the agent who wrote and delivered the policy, being a general agent, saw the car at the time of the taking out of the insurance and placed his own value thereon, without further representation than signing the application by the insured, it was error to exclude the testimony for the plaintiff as to such facts.

HON. W. L. CRANFORD, Judge.

APPEAL from circuit court of Covington county, HON. W. L. CRANFORD, Judge.

Action by Curtis C. Knight against the Hartford Fire Insurance Company. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.

Judgment reversed and case remanded.

E. L. Dent, for appellant.

The true facts of this case which the court below would not let the jury hear, instead of being as represented by said pleas, are: That the insurance agent pursuaded this school boy, appellant, to have his automobile insured and that this agent even wanted to insure the car for one thousand dollars. The agent placed the value on the car, and not appellant. Appellant was not even asked what he gave for the car.

It is beyond our comprehension just why the circuit judge after the introduction of all the evidence, gave a peremptory instruction for appellee when from the evidence there was not the slightest imputation of bad faith or over-valuation of the car on the part of appellant. The appellant, in his declaration, set out that he had complied with all the terms and conditions of said contract and policy of insurance. He swore as a witness that for the automobile, including equipment, he gave one hundred seventy-five dollars, but that after having it overhauled and new parts put on it, it cost him seven hundred fifty dollars or more, and that at the time it was insured, it was reasonably worth from eight hundred fifty to one thousand dollars.

There is not one scintilla of evidence in this record and none can be produced that appellant misrepresented one single fact about his automobile either to the appellee or its agent, that can by the remotest degree be considered to substantiate in the very slightest manner the allegations of fraud and misrepresentation in appellee's two special pleas. Yet, notwithstanding that fact, the learned circuit judge judicially determined that the automobile cost appellant one hundred seventy-five dollars and that this was such a fraud and misrepresentation on his part that he could not collect on the policy. In my judgment that was certainly a miscarriage of justice which this court should correct by reversing this case.

T. J. Wills and R. L. McLaurin, for appellee.

The policy contained a warranty that the actual cost at the time of the purchase of this car in June, 1924, was seven hundred thirty dollars, and a stipulation that, "This entire policy shall be void if the assured has concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof."

The plaintiff rested his case upon the issue as to whether or not the car had cost one hundred seventy-five dollars or seven hundred thirty dollars at the time he purchased it. If he had relied upon a waiver, it was necessary for him to have set it up as affirmative matter in his replication. See Rayborn v. Bank of Commerce, 76 So. 826.

The insured was charged with notice of the representations and warranty contained therein. He knew that he had warranted that the actual cost of the car at the time he purchased it was seven hundred thirty dollars. He also knew that the actual cost to him was only one hundred seventy-five dollars and that there was a stipulation that the entire policy should be void if he had concealed or misrepresented any of the facts. Hartford Fire Ins. Co. v. McCain, 106 So. 529; Va. Fire Marine Ins. Co. v. Morgan, 18 S.E. 191.

The warranty as to the actual cost of the car was an...

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