Newark Fire Ins. Co. v. McMullen

• Decision Date: 22 March 1926
• Docket Number: 25487
• Citation: 107 So. 523,142 Miss. 369
• Court: Mississippi Supreme Court
• Parties: NEWARK FIRE INS. CO. v. MCMULLEN. [*]

107 So. 523

142 Miss. 369

NEWARK FIRE INS. CO. v. MCMULLEN. ^[*]

No. 25487

Supreme Court of Mississippi

March 22, 1926

Division B

1 INSURANCE.

If written notice of loss is waived, then under Code 1906 section 2593 (Hemingway's Code, section 5057), proof of loss is waived by failure to furnish blanks therefor.

2 INSURANCE.

Evidence that insurer's agent was general agent, with authority to waive provision for written notice, held sufficient to go to jury.

3 INSURANCE. Stipulated written notice of loss held waived by general agent's statement to insured.

Stipulated written notice of loss was waived by general agent telling insured that insurer knew of loss and had arranged with adjustment agency to adjust loss, and that its local agent would furnish blanks for proof of loss.

HON. G. E. WILSON, Judge.

APPEAL from circuit court of Newton county, HON. G. E. WILSON, Judge.

Action by F. T. McMullen against the Newark Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Watkins, Watkins & Eager, for appellant.

I. The court erred in refusing the instruction directing the jury to return a verdict for appellant. More than sixty days had elapsed between the date of the loss and the filing of the suit. The theory of appellee's case, in order to avoid that provision of the policy requiring proofs of loss, was that the provision was waived by virtue of the fact that appellee and his wife testified that they had been told by Mr. McKnight, special agent, that Mr. Graham would furnish blanks for proofs of loss and having failed to do so, the company waived this provision. The policy being a five-year policy, it is seen that immediately preceding the signature of appellee this closing sentence appears: "This company shall not be bound by any act done or statement made by or to any agent, or other person, which is not contained in this, my application."

Appellee was bound by the terms of the policy which he testified that he had in his possession; and having been put on notice when he executed the application as to the limited authority of the agent Graham, he was further put on notice by the terms of the policy itself that no officer, agent or other representative of the company had the power to waive any of the provisions or conditions of the policy unless endorsed thereon in writing.

The testimony shows that the only proof of loss attempted to be furnished by appellee was a sketch, or drawing, made by a carpenter of the house which was destroyed by fire. This sketch, or drawing, contained no additional information, nor was it signed by assured or even the carpenter, nor was it sworn to, nor did it contain the information required by the terms of the policy. This, we submit, is no compliance with the provisions of the policy and entitled appellant to a directed instruction to find in its favor.

This court has often recognized and pointed out the distinction between a general agent with authority to make contracts of insurance and adjust losses, holding that such an agent can waive the provisions of the policy by word of mouth or by his actions and the company become bound thereby, and a mere soliciting agent who is limited in his authority, the company not being bound by any act on his part which goes beyond the scope of his limited agency. Insurance Companies v. Sorsby et al., 60 Miss. 313. The court has re-affirmed its decision in the Sorsby case several times, reference being also made to Liverpool, London & Globe Ins. Co. v. Van Os et al., 63 Miss. 441. Also, in respect to the proposition of waiver, see New Orleans Ins. Ass'n v. Matthews, 65 Miss. 301.

Therefore, we submit that the testimony of appellee is wholly insufficient, in the first place, to show any waiver on the part of either McKnight or the agent Graham of the provision of the policy requiring proofs of loss and, in addition to that fact, the testimony shows that these representatives of the company were wholly without authority to waive such provision of the policy, Mr. McKnight being a special agent and having nothing to do with this particular risk and not concerned with it in any manner, and the agent Graham being a mere soliciting agent without authority to change the terms of the policy.

II. The court erred in granting instruction number one for appellee. This instruction is fatally defective from beginning to end, for it submits to the jury for determination questions of fact unsupported by the evidence of the case. In the first place, the evidence does not show that appellee made application to any agent of the company for blanks for proofs of loss and, even admitting for sake of argument that he did, the only request that could have been made under any construction placed upon the testimony was that made to the soliciting agent Graham, and he was not even the soliciting agent of the company after May 8, 1925, and at no time did he have the authority to waive the provision of the policy requiring proofs of loss and this appellee well knew.

Said instruction is defective for the further reason that it set out that appellant promised and agreed to furnish said blanks through its agent and failed to do so, and that appellee relied upon these promises and on such account such provision of the policy was waived. There is utterly no proof in the record to justify the jury finding any such fact from the testimony and the instruction was therefore erroneous.

W. I. Munn, for appellee.

The sole question presented in this case is whether or not under the testimony the insurance company waived the stipulations in the policy in regard to the proof of loss, and if the appellee, the insured, was led to believe by the insurer that he had done all that was necessary for him to do in order to get his money. This question was one of fact; and, therefore, this court will not disturb the finding of the lower court. It follows from the testimony that if the jury believed the testimony of the appellee and that of his wife, Minnie McMullen, the jury was warranted in finding that the insurance company had waived that provision of the policy touching the proof of loss, and that the acts and conduct of the agent of appellant were such as to lead the appellee to believe that he had done, and did do, everything required of him by the appellant in regard to making the proof of loss. New Orleans Ins. Ass'n v. Matthews, 65 Miss. 301, well supports our contention. The United States supreme court holds the same doctrine in Thompson v. Phoenix Ins. Co. of Brooklyn, 34 L.Ed. 408, 136 U.S. 287. The case at bar should be affirmed.

Watkins, Watkins & Eager, for appellant, in response to request of the court.

The request of the court was as follows: What application, if any, has section 2593, Code of 1906 (section 5057, Hemingway's Code) to this case?

Notice not having been received by the company as to appellee's fire, no duty devolved upon it to furnish to the insured proof of loss blanks. See section 2593, Code of 1906 (section 5057, Hemingway's Code). By reference to the contract of insurance it is seen that it provides: "If fire occur, the insured shall give notice of any loss thereby in writing to this company . . ." The statute requires notice of such loss from the assured to the company. The policy provides the form of this notice; to-wit: notice in writing. The only notice of any loss in this case was the notice to the agent Graham. Mere knowledge to any agent is not notice to the company so as to dispense with notice of loss. Utica Sanitary Milk Co. v. Casualty Co., 210 N.Y. 399, 104 N.E. 918; American Acc. Co. v. Card, 713 Ohio Cir. Ct. 154, 7 Cir. Dec. 504; Interstate Fire Ins. Co. v. Nelson, 105 Miss. 448; Cooley on Law of Insurance, secs. 2796, 2797 and cases there cited.

Some courts have gone so far as to say that one applying for fire insurance through a soliciting agent is bound to ascertain the scope of his authority. Sun Fire Ins. Office v. Wich, 39 P. 587.

Notice of loss is separate and distinct from proofs of loss, and it is essential to a recovery that notice of loss be made to the company through some general representative, not a mere soliciting agent or a passing special agent who has not the matter in hand. Citizen Mut. Fire Ins. Co. v. Conowingo Bridge Co., 113 Md. 430, 77 A. 378; Watertown Fire Ins. Co. v. Grover, etc., Sewing Machine Co., 41 Mich. 131, 1 N.W. 961, 32 Am. Rep. 149; Cargill v. Millers, etc., Ins. Co., 33 Minn. 90, 22 N.W. 6. And formal notice of loss is essential, although the company has actual notice thereof. Continental Ins. Co. v. Parkes, 142 Ala. 650, 39 So. 204; California Savings Bank v. Am. Surety Co., 87 F. 118. However, this court has passed upon this proposition itself in the recent case of Mass. Protective Ass'n v. Cranford, 102 So. 172.

In the case at bar, there is absolutely no evidence that any notice of the loss was ever received by the company or an agent with authority to receive notice of loss on behalf of the company. Nor is there any evidence of any written notice of loss whatsoever. 33 C. J., par. 6, discusses the question as to whom and through whom notice of loss must be given. Such an agent as McKnight has no power to delegate his authority. Albers v. Phoenix Ins. Co., 68 Mo.App. 543; McCollum v. North British & Mercantile Ins. Co., 65 Mo.App. 304; Murphy v. Royal Ins. Co. of Liverpool, 29 So. 143; Western Union Tel. Co. v. Lambert (1906), 106 So. 819.

We wish to make clear to the court the distinction with reference to the question of notice of loss and waiver thereof by a soliciting agent, a general agent, an adjuster, and a special agent. As this court has itself held and as cited hereinbefore, the soliciting agent is without authority to bind the...