New Orleans Ins. Ass'n v. Matthews

• Decision Date: 12 March 1888
• Citation: 65 Miss. 301,4 So. 62
• Court: Mississippi Supreme Court
• Parties: NEW ORLEANS INSURANCE ASSOCIATION v. M. C. MATTHEWS

4 So. 62

65 Miss. 301

NEW ORLEANS INSURANCE ASSOCIATION v. M. C. MATTHEWS

Supreme Court of Mississippi

March 12, 1888

APPEAL from the Circuit Court of Copiah County, HON. T. J. WHARTON Judge.

This is an action on a policy of fire insurance brought by M. C Matthews against The New Orleans Insurance Association.

It appears that defendant, in February, 1885, issued plaintiff a policy of insurance against loss by fire on a certain wooden store building in the town of Hazlehurst. This policy contained a stipulation that, "In case of loss the assured shall give immediate notice thereof, and shall render a particular account of said loss under oath, stating the time, origin and circumstances of the fire, the occupancy of the building insured or containing the property insured other insurance, if any, and copies of all policies; the whole value and ownership of the property and the amount of the loss or damage; and shall produce the certificate under seal of a magistrate, notary public or commissioner of deeds nearest the place of the fire and not concerned in the loss or related to the assured, stating that he had examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has, without fraud, sustained loss on the property insured to the amount claimed by the assured." The policy also contained another stipulation as follows "It is further expressly covenanted by the parties hereto that no officer, agent or representative of this association shall be held to have waived any of the terms and conditions of this policy unless such waiver shall be endorsed hereon in writing."

On Nov 16, 1885, the house insured was burned. None of the requirements of the first stipulation above set out was ever complied with.

On Oct. 1, 1886, this action was brought. On the question whether there was a waiver of the provisions of the condition in relation to proofs of loss, the evidence was as follows:

L. H. Matthews, a witness for plaintiff, testified that he was the agent of plaintiff, and managed her business; that Gillaspie, agent and adjuster of the insurance company, came to Hazlehurst within a week or ten days or more after the fire to adjust the loss; that Gillaspie employed one Gilland, a carpenter, whom he caused to be sworn, to estimate the cost of replacing the building burnt by a new one; that measurements were taken under witness' direction, and all the information in his possession as to the house destroyed was furnished by witness to Gillaspie; that Gilland estimated that a new house of same proportions would cost $ 2183; that he told Gillaspie all he knew about the origin of the fire; that Gillaspie at first seemed to want to settle on that valuation, to which witness agreed, when Gillaspie said: "No, there is something else to do. He said they had the right to put a new building there just like the old one; but if they did, the new building would be worth more than the old one, and they wanted me to deduct the difference. I said it was a total loss, and I ought to be paid for it." This witness further testified as follows:

"Q. Did you make any other proof of loss? If not, why not?" A. I thought his coming down here and getting a mechanic and making an estimate, and both of us agreeing to it, was sufficient, and did not make any further proofs.

"Q. Explain fully why you did not make any further proofs.

"A. Because, when I gave them the dimensions of the house and we went into that estimate, I considered that proof of loss.

"Q. Upon what ground did Mr. Gillaspie decline to pay the loss?

"A. He wanted to leave it to an arbitration--wanted to let Mr. Gilland say what was the difference between that old house and a new one. I said the house was in good repair and was worth $ 2000 to me. I was not willing to let arbitrators say what difference there should be, because that house was as good as new to me.

"Q. What did Mr. Gillaspie say about requiring any other proof of loss?

"A. He never said a word."

The plaintiff introduced certain letters from the agents of the defendant, addressed to L. H. Matthews, agent of plaintiff, as follows:

"VICKSBURG, MISS., March 29, 1886.

"We have your valued favor 27th inst., touching papers in the hands of our Captain G. We send your letter to him to Jackson by first mail, that he may comply with your request.

"DOHERTY & GILLASPIE."

"MACON, MISS., April 1, 1886.

"Your letter to our office received, and I answer that we are strongly inclined to be accommodating and send you the estimate, to be copied for your use with the Pelican (Insurance Co.), but would like to hear from you first, to know what you are going to do as to our company? Do you make us concessions as a difference between a new house, as per Mr. Gilland's estimate, and an old one not architecturally in shape? I will make you an offer for our policy of $ 1000. Let me hear from you promptly.

"Yours truly,

"DOHERTY & GILLASPIE,

"By W. M. GILLASPIE."

"JACKSON, MISS., April 15, 1886.

"Your favor of the 12th inst. received on my return here this morning. You say the company is doing Mrs. M. a wrong to require her to go to law and lose $ 125, after having received her money for years under a contract to pay her $ 2000 in case of a loss. The contract is to pay her not two thousand dollars in case of a loss, it is to pay her exactly what the property destroyed was worth at the time it burns, not exceeding $ 2000, or the insurance. We might also reply that you are doing the company a big wrong to require them to go to law to keep from paying for property insured more than they should do.

"I am sure Mrs. M. is not taking into consideration the fact that lawyers are sometimes mistaken as to what they can do. Her lawyers have only one side of the story. If the company should go into court, but they don't want to do it, the case would not get out of the shackles of the law maybe for three or five years. And can she be certain of success? I will write you definitely in as short a time as possible, not more than five or six days.

"Yours truly,

"W. M. GILLASPIE."

"VICKSBURG, MISS., June 3, 1886.

"MRS. M. C. MATTHEWS, Hazelhurst, Miss.

"Dear Madam--Your favor yesterday just received and carefully noted. We agree with you perfectly that an amicable settlement is better in every way than litigation. Your proposition is for the two companies to pay you $ 1875, and then apportion same between themselves. This you will see is impracticable, for the reason that our policy contains conditions not in the other. But we will pay our proportion of whatever amount may be agreed on.

"If you will calculate the expense of litigation, and if you succeed in getting a judgment, as you will, you will not forget that the doubts are on your side of not collecting $ 1875, as the cash value of the house at the time of the fire; then, if it is appealed, there will be delays and costs added. We wish to avoid all this. We will write you again as soon as we can hear from the other company.

"Very respct.,

"DOHERTY & GILLASPIE,

"By W. M. GILLASPIE."

W. M. Gillaspie, witness for the defendant, and general agent and adjuster for defendant, testified as follows: "The first thing I did was to come down here and get the plans and specifications of Mrs. Matthews' building from Mr. Matthews, who occupied the building, and who was her agent. After I came here, I got a man who was engaged at the time in putting up a brick building for Major Millsaps. I asked Mr. Matthews if he thought Mr. Gilland was competent, and if his estimate was satisfactory. He expressed no objection to his being engaged to make the estimate. After we had got the ground measurement and such information as was given us by Mr. Matthews as to the way the building was put up, we went forward and made the estimate, which we showed to Mr. Matthews. He said that certain things had been left out: show windows, skylights, front gallery. We then asked him to give us a corrected plan, embracing everything. He took the matter under consideration, and the next day he furnished us with a more detailed plan; and upon that we completed another estimate and submitted it to Mr. Matthews. Mr. Matthews said he could not settle by that if any depreciation was to be made between the value of the old building and a new one. He could not submit to that, because he considered the building worth to him the amount of the policy, and he thought he ought to be paid $ 2000. In other words, what he stated on the stand was correct.

We discussed it; I endeavoring to come to an understanding as to the value of the property and to get at a settlement. We discussed the whole matter, but came to no conclusion. I left then; but returned twice afterwards to try to settle the matter with Mr. Matthews; he standing to the amount of the insurance, and would make no concessions. Then occurred the correspondence; and there the matter ended."

The defendant moved the court to instruct the jury to find as in the case of a non-suit, because there was no evidence tending to show that proofs of loss were furnished, or that the same were waived. This the court refused to do. The cause was submitted to the jury, and there was a verdict for the plaintiff, and judgment accordingly. The defendant appealed.

Affirmed.

W. P. & J. B. Harris, for the appellant.

1. If a party determines at the outset that he will insist on certain terms or sue, and the terms are rejected, it is inadmissible in law that he claim that any right or demand of the other party is lost by the rejection of the terms. If a party has determined, on entering into a negotiation, that he will have certain terms nolens volens, and if he cannot get them in the...