Maryland Casualty Co. v. Adams

• Decision Date: 05 January 1931
• Docket Number: 28841
• Citation: 159 Miss. 88,131 So. 544
• Court: Mississippi Supreme Court
• Parties: MARYLAND CASUALTY CO. v. ADAMS

131 So. 544

159 Miss. 88

MARYLAND CASUALTY CO. v. ADAMS

No. 28841

Supreme Court of Mississippi

January 5, 1931

Division A

1 INSURANCE.

Waiver by insurer growing out of agent's acts cannot be relied on so as to extend automobile policy to cover vehicles not specifically within policy.

2 INSURANCE. Insurer, under public liability policy covering truck, held not liable on policy on theory of waiver, where truck at time of accident was pulling trailer.

Policy contained express condition that no motor vehicle covered thereby should be used for towing or propelling any trailer or any vehicle used as a trailer, and expressly provided further that policy did not cover motor vehicle therein described while being used for towing or for propelling any trailer or any vehicle used as a trailer.

3 INSURANCE.

Insured's illiteracy and lack of opportunity to read public liability policy at time of delivery held not to excuse failure to read policy, where period of approximately four months elapsed between delivery and accident.

4. EVIDENCE.

It is matter of common knowledge that truck with trailer attached will carry heavier loads and is more difficult to operate.

5. INSURANCE.

Fact that front part of truck pulling trailer struck third party's automobile held not to negative facts showing causal connection between accident and use of combined trailer and truck heavily loaded under indemnity policy covering only truck.

HON. JAS. A. FINLEY, Chancellor.

APPEAL from chancery court of Prentiss county, HON. JAS. A. FINLEY, Chancellor.

Attachment suit by Curtis E. Adams against the Maryland Casualty Company. From a decree overruling a demurrer to the bill of complaint, defendant appeals. Reversed, demurrer sustained, and cause remanded.

Reversed and remanded.

E. C. Sharp and Watkins, Watkins & Eager, all of Jackson, for appellant.

There is a material distinction between the power of an agent to waive or estop his company in reference to certain forfeiture provisions, and his power to increase or add to the coverage provided by the terms of the policy.

Massie v. Washington Fidelity National Insurance Co., 153 Miss. 436, 121 So. 125; Miss. Electric Co. v. Hartford Fire Insurance Co., 105 Miss. 768, 63 So. 231.

The suggestion of illiteracy cannot prevail, for the manifest reason that there cannot be two separate departments in the law of contract, one for the educated and another for those who are not. Certainly the laws on insurance could never be administered on any such basis.

Mixon v. Sovereign Camp W. O. W., 155 Miss. 848, 125 So. 113.

It is equally well settled, however, that where the terms of a policy are unambiguous the court will give effect to them where not prohibited by law, and the court will not undertake to rewrite or change a policy the parties themselves have made, so as to protect one of the parties to the contract from his own improvidence or imprudence or neglect.

Jackson Steam Laundry v. Aetna Casualty & Surety Co., 156 Miss. 663, 126 So. 478.

Where the policy itself, however, had been for a long time in the assured's possession, if he did not read the terms thereof he is bound thereby nevertheless. He cannot lay the policy aside and contend that he does not know the provisions of the policy that are contrary to his interest, while claiming his rights under the provisions therein contained that are favorable to him.

Home Mutual Fire Ins. Co. v. Pittman, 111 Miss. 425, 71 So. 739; Snyder v. Woolverine Mutual Motor Ins. Co., 231 Mich. 692, 204 N.W. 706.

Where the accident was one not covered by the policy, there is, of course, no basis for a recovery on the policy by the injured party.

5 Couch on Insurance, sec. 1175D, page 4187; Matthews v. Bloomfield, 246 Mass. 510, 141 N.E. 494.

J. A. Cunningham, of Booneville, for appellee.

There is quite a broad distinction between the question of waiver and estoppel relied upon in this case, growing out of the knowledge of the general agent who wrote and delivered the policy that the truck was going to be used in towing a trailer in hauling logs and lumber, and in the question on non-coverage.

Massie v. Washington Fidelity Nat. Ins. Co., 121 So. 126; Scottish Union National Ins. Co. v. Wiley, 70 So. 835; Georgia Home Insurance Company v. Holmes, 30 So. 183.

Policy was not read by the insured for two reasons:

1. That he was illiterate and could not read; 2. That the agent fraudulently assured him, when he handed him the policy that this will protect your outfit against accidents, and is what you want.

The demurrer was properly overruled as there is nothing in the declaration to show, or from which it might be inferred, that his injury was wrought in whole, or in part by the mere fact that the truck was towing a trailer or that the use of the trailer had any causal connection with the accident.

Hosley v. Union Indemnity Co., 102 So. 561.

OPINION

Cook, J.

The appellee, Curtis E. Adams, instituted this suit by an attachment in the chancery court of Prentiss county against the Maryland Casualty Company, appellant, seeking to recover on a public indemnity insurance contract, and from a decree overruling a demurrer to the bill of complaint, this appeal was prosecuted for the purpose of settling the principles of law involved.

The bill of complaint alleged that on or about the 16th of May, 1929, one F. A. Falls approached the general agent of the appellant company at Amory, Mississippi, and informed him "that he desired to obtain a policy which would protect him against accidents on his outfit, a new three-fourths ton International truck and trailer," and, at the same time, handed to the said agent "the privilege licenses just obtained on his car and truck;" that the said agent asked the said Falls what he was going to haul, and was informed that "he was going to haul logs and lumber;" that the agent then informed Falls that the premium for such policy was twenty-two dollars and twenty cents, which was paid; that the said agent then drew up the policy, "which he did not read to the said Falls, and which the said Falls on account of his illiteracy was unable to read, and which policy said agent fraudulently gave him no opportunity to read, but handed the policy to him, fraudulently saying: "This is what you want, and this will protect you against damage to third persons on account of injuries that may accrue in the operation of this outfit."

The bill of complaint further alleged that the said Falls began to operate this "truck and trailer" in and over the roads and streets of Amory, Mississippi, and Prentiss county, Mississippi, which fact was known to the said agent of the appellant company; and while hauling and conveying lumber and timber with said truck and trailer on a certain highway in Lee county, Mississippi, on the evening of September 9, 1929, the driver of the truck, who was the agent of the said F. A. Falls, so negligently operated said truck with the trailer attached as that his truck, the bumper, and front wheels, struck the rear end of a Ford automobile which the appellee, Adams, was attempting to crank, and thereby caused serious personal injuries to the said Adams; that a few days thereafter the said Adams filed a suit in the circuit court of Lee county against the said F. A. Falls, a copy of the declaration being attached as an exhibit to the bill of complaint; and that the trial of the cause resulted in a verdict and judgment in favor of the appellee, Adams, and against the said Falls for the sum of two thousand five hundred dollars.

The bill of complaint...