Mississippi Home Insurance Company v. Stevens

• Citation: 93 Miss. 439,46 So. 245
• Court: United States State Supreme Court of Mississippi
• Decision Date: 11 May 1908
• Parties: MISSISSIPPI HOME INSURANCE COMPANY v. BEE STEVENS

46 So. 245

93 Miss. 439

MISSISSIPPI HOME INSURANCE COMPANY v. BEE STEVENS

Supreme Court of Mississippi

May 11, 1908

October 1908

FROM the circuit court of Perry county, HON. WILLIAM H. COOK Judge.

Stevens appellee, was plaintiff in the court below; the insurance company, appellant, was defendant there. From a judgment in plaintiff's favor defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Case affirmed.

Hall &amp Reddock, for appellant.

It is shown by the record that the agent of the insured at the time the policy was written expressed to the appellee his opinion regarding the vacancy permit as contained in this policy on school houses, but the opinion of the agent does not bind the company or estop it from defending on the grounds of non-occupancy of the building and a strict compliance of the written terms of the policy on the part of the appellee. Ostrander on Fire Insurance (2d ed.) 140, Sec. 37; Home Ins. Co. v. Scales, 71 Miss. 975, 15 So. 134.

Stevens, the appellee, after having the agent's opinion in respect to the vacancy permit, accepted the written policy. In doing this he merged all contemporaneous agreements into rho written instrument. Ostrander on Fire Insurance (2d ed.) 749, § 358; 37 Mich. 613; 55 N. J. Law 377; 27 A. 641; 90 Va. 290; 116 N.Y. 326; 96 U.S. 544.

In the absence of fraud, misrepresentation, or concealment on the part of the agent of insurer, a verbal statement is not binding in the face of the printed stipulation in the policy. It has been held by this court in Liverpool, etc., Co. v. McGuire, 52 Miss. 227, that the verbal representation of the agent at the time he effected the insurance was binding on the insurer, but this was where the policy of insurance was silent as to occupancy, an entirely different case from the one at bar. A written contract cannot be waived or controlled by antecedents or contemporaneous agreements. See notes, Ostrander on Fire Insurance (2d cd) 750.

The appellee in this cause is barred from recovering on the additional ground that the hazard was made greater because of the school house having been converted into a hay house. Western Assurance Co. v. McPike, 62 Miss. 740; 8 Am. Rep. 600; 66 Am. St. Rep. 698; 73 Am. St. Rep. 122.

Watkins & Watkins, for appellee, cited: Insurance Company v. McGuire, 52 Miss. 230; Rivara v. Insurance Company, 62 Miss. 720; Mitchell v. Mississippi Home Ins. Company, 72 Miss. 52, 18 So. 86, 48 Am. St. Rep. 535; Insurance Company v. Gibson, 72 Miss. 58, 17 So. 13; Insurance Company v. Farnsworth Co., 72 Miss. 555, 17 So. 445; Insurance Company v. Stein, 72 Miss. 943, 18 So. 414; Insurance Company v. Stewart, (Miss.) 30 So. 755; American Fire Ins. Co. v. First National Bank et al., 73 Miss. 469, 18 So. 931; Assurance Company v. Phelps, 77 Miss. 625, 27 So. 745; Insurance Company v. Randle, 81 Miss. 720, 33 So. 500; Insurance Company v. Sheffy, 71 Miss. 919, 16 So. 307; Insurance Company v. Bowdre, 67 Miss. 620, 7 So. 596, 19 Am. St. Rep. 326; Milling Company v. Fire Insurance Co., 130 Wis. 47, 109 N.W. 937; Wensel v. Insurance Company, 129 Iowa 295, 105 N.W. 522; District of Doon v. Insurance Co., 113 Iowa 65, 84 N.W. 956; Blass v. Insurance Company, 18 A.D. 481, 46 N.Y.S. 392; England v. Insurance Company, 81 Wis. 583, 51 N.W. 954, 29 Am. St. Rep. 917; Fire Ins. Company v. Tilley, 88 Va. 1024, 14 S.E. 851, 29 Am. St. Rep. 770; Erb v. Insurance Company, 99 Iowa 727, 69 N.W. 261; Ormsby v. Insurance Company, 98 Mo.App. 371, 72 S.W. 139; Insurance Company v. Williams, 95 Va. 248, 28 S.E. 214; Insurance Company v. Olmstead, 21 Mich. 246, 4 Am. Rep. 483.

Stevens, Stevens & Cook, on the same side, cited: 19 Cyc. p. 656; 19 Cyc. p. 733, and notes; American Ins. Co. v. Foster, 92 Ill. 334, 34 Am. Rep. 134; Hampton v. Hartford Fire Ins. Co., 64 N. J. Law, 265, 47 A. 433, 52 L. R. A. 344; Whitney v. Black River Ins. Co., 72 N.Y. 117, 28 Am. Rep. 116; Sonneborn v. Mfgrs. Ins. Co., 44 N. J. Law, 220, 43 Am. Rep. 365; Caraher v. Royal Ins. Co., 63 Hun. 82, 17 N.Y.S. 858; Herrman v. Merchants' Ins. Co., 81 N.Y. 184, 37 Am. Rep. 488; Continental Ins. Co. v. Kyle, 124 Ind. 132, 24 N.E. 727, 9 L. R. A. 81, 19 Am. St. Rep. 77; Whitney v. Black River Ins. Co., 72 N.Y. 117, 28 Am. Rep. 116; American Fire Ins. Co. v. Brighton Cotton Mfg. Co., 125 Ill. 131, 17 N. N. 771; Georgia Home Ins. Co. v. Kinnier's Adm'x, 28 Grat. (Va.) 88; Georgia Horne Ins. Co. v. Allen, 128 Ala. 451, 30 So. 539; Insurance Co. v. Gibson, 72 Miss. 58, 17 So. 13; Insurance Co. v. Bank, 73 Miss. 470, 18 So. 931; Insurance Co. v. Richmond Mica Co., 102 Va. 429, 46 S.E. 463, 102 Am. St. Rep. 846; Insurance Company v. Pitts, 88 Miss. 587, 41 So. 5, 7 L. R. A. (N. S.) 1036, 117 Am. St. Rep. 756.

OPINION

CALHOON, J.

Stevens bought the old unused court house of the county, was the owner of it, and took out a policy of insurance on it. At the date of the policy the building was used and occupied and insured as a "school house." The agent soliciting the insurance was taken to the house by Stevens, and it was examined by him, and the amount of the premium agreed on. During this conversation the attention of the agent was called to the vacancy clause in the policy of insurance, and he told Stevens that the vacancy clause did not apply in the cases of churches, court houses, and school houses. About two months after the policy was delivered the house was totally consumed by fire.

The insurance company bases its defense on the vacancy clause and on the fact that certain hay was in the building at the time of the fire, and the fact that on one or two occasions certain raftsmen, when water was high in the river near there, would pass a night in the building. It will be noted that the soliciting agent knew that the building was not occupied at night, and...