Phoenix Ins. Co. v. Bowdre

• Decision Date: 05 May 1890
• Court: Mississippi Supreme Court
• Parties: PHENIX INSURANCE CO. v. T. B. BOWDRE ET AL

7 So. 596

67 Miss. 620

PHENIX INSURANCE CO. v. T. B. BOWDRE ET AL

Supreme Court of Mississippi

May 5, 1890

FROM the circuit court of Tate county, HON. W. M. ROGERS, Judge.

Appellees T. B. and W. B. Bowdre, sued the Phenix Insurance Company, of Brooklyn, New York, on a policy issued May 17, 1888, insuring the residence of plaintiffs in Tate county, near Senatobia Miss., against loss by fire to the amount of $ 2000. The building was burned September 6, 1888. The two defenses relied upon by the company in this court are set forth in the opinion. It is not deemed necessary to state the others.

A provision of the policy required that notice should be given the company within six days after a loss, and, within thirty days further, that proofs of loss should be furnished "and as a part of the preliminary proofs of loss, the assured shall . . . procure the duly verified certificate of some reliable and responsible builder in detail as to the actual cash value of such building immediately before said fire, which shall be attached to and form a part of such proofs."

Another condition of the policy is as follows: "It is understood and agreed that the agents of this company have no authority in any manner, or by any act or omission whatsoever, either before or after making this contract, to waive, alter modify, strike from this policy, or otherwise to change any of its conditions or restrictions, except by distinct specific agreement, clearly expressed and indorsed hereupon and signed by the agent making it. Nor shall silence upon receipt of notice of breach of any condition or restrictions herein, or failure to declare this policy forfeited thereby, or the issuance of any renewal or new policy, or the acceptance of any premium or other money, or any other act or omission whatsoever by any agent of this company, whether with or without knowledge of such breach, or whether before or after the making of this contract, work any waiver of such conditions or restrictions, or affect any estoppel against this company, or deprive it of any forfeiture or defense, either in law or in equity, to an action upon this policy."

The policy was countersigned and issued by one T. P. Hill, the agent of the company at Senatobia, who was provided with blank printed policies, signed by the president and secretary of the company. As was his custom, Hill made the contract of insurance, fixed the rate, received the premium, and issued to assured the policy, first filling in the written portions. All the particulars were communicated to the company in a daily report made by the agent at the time of issuing the policy. Said Hill had in his possession a certificate or commission showing his appointment as agent of said company, "with full power to receive proposals for insurance against loss and damage by fire in Senatobia, Miss., and vicinity, to fix rates of premium, to receive moneys, and to countersign, issue, renew, and consent to the transfer of policies of insurance signed by the president or the secretary of the said Phenix Insurance Company, subject to the rules and regulations of said company, and to such instructions as may from time to time be given by its officers."

The above facts were shown in evidence on the trial, and the plaintiff introduced in evidence also a certified transcript from the auditor's office, showing that said T. P. Hill, of Senatobia, Tate county, was in the list of agents of said company appointed in the state, the certificate of appointment, signed by the president and secretary, being as follows: "This is to certify that the persons named in the following schedule have been duly appointed by the Phenix Insurance Company, of Brooklyn, New York, as its agents for the transaction of the business of insurance in the state of Mississippi during the year 1888." The filing in the auditor's office of this evidence of the appointment of agents by the non-resident insurance company was in pursuance of the requirements of the statute.

After the house was burned the appellant, T. B. Bowdre, applied to the agent Hill, who had issued the policy, and asked what he should do to collect the money. Hill told him that he would have to give him [Hill] notice of the loss, and wrote out the notice himself, addressed, "T. P. Hill, agent Phenix Ins. Co." This notice was signed by Bowdre and taken by Hill, who also informed the assured that he would have to make proof of loss, and copied from his book the form of proof which Bowdre re-copied and returned to him duly signed. Hill indicated some corrections which Bowdre made, after which Hill received the proof, pronounced it correct, and forwarded the same to the company. The proof so prepared under the direction of Hill did not contain a builder's estimate, as required by the policy, Hill stating that he did not consider such estimate necessary unless the company should call for it. The proof was delivered to Hill about the 22d of September, 1888, and he forwarded it to the general agent of the company at Chicago. Meantime, after the fire, Bowdre had changed his post-office from Senatobia to Coldwater, but the general agent of the company was not notified of this. On the 28th of September the general agent of the company wrote him a letter from Chicago, which was registered on the 29th, addressed to Senatobia, stating that the proof of loss had been received, but calling attention to the fact that it was defective by reason of the failure to send a builder's estimate. This estimate, it was said, was indispensable, and the general agent declined to receive the proof of loss without it. This letter was not received by Bowdre until the time had about expired for furnishing the proof of loss. But on September 29, he had, as a matter of caution, written the company again, sending a copy of the proof made under the direction of and corrected by Hill. In this letter it was stated that the "written statement of the fire" had been given to "your agent here, Mr. T. P. Hill." This letter was received at Chicago, October 4, but was not answered. When Bowdre received the information that the builder's estimate was essential, he saw Hill, who still thought it unnecessary. But Bowdre, after some difficulty, obtained one, and sent it to the general agent on October 23. The mechanic who had built the house was sick, and hence there was a delay in obtaining the estimate, but it was forwarded about as soon as it could be obtained from him, though there were other mechanics in the vicinity. On October 30, the general agent acknowledged receipt of the papers, but wrote that the time had expired before the corrected proof was received, and asserted the forfeiture of the policy on that ground.

Plaintiff, T. B. Bowdre, testified that he applied to the agent, Hill, to know what he should do after the loss, and that Hill, as such agent, assisted him in making out the proof of loss as above stated and accepted the same, saying it was all right and that no builder's estimate was necessary, and that for this reason none was furnished within the time limited. He denied that the agent Hill told him he could do nothing in the matter of adjusting the loss as agent, and could only make suggestions as an individual; denied dealing with Hill except as an agent of the company, and, as he supposed, with full power to accept the proof of loss and act for the company. The agent, Hill, testified that after the loss he explained fully to Bowdre that as agent he could do nothing and could make no suggestions in the matter of adjusting the loss, and that he showed the assured a book of instructions, in which his duty as to this was explicitly stated; that what he did for Bowdre was as an individual, and this was expressly so understood, and that Bowdre promised not to let the fact be known that he [Hill] had aided him in preparing the proofs of loss. He informed Bowdre that the adjuster of the company would be there soon; that the adjuster sometimes waived the builder's estimate and might do so in this case. The book of directions was introduced in evidence, showing that after a loss an agent could take no action whatever except report it to the company. It was further shown that Hill had only acted as the agent of the company at Senatobia, and that he had never had anything to do with adjusting a loss: this was the first loss that had occurred since he had been agent. He testified that he was a mere local agent of the company, and had no authority except such as was given in his commission, and exercised none.

One Weems, a witness for defendant, testified to being present at a conversation between Bowdre and Hill when the latter examined the house preparatory to issuing the policy, when Bowdre asked the agent if he would get his money from him in the event the house burned, when Hill answered no, that he would put him in a good company, and would have nothing more to do with it.

On the question of title it was shown that under a devise by one Merriwether, grandfather of plaintiffs, the executors of his will had bought the land upon which the residence was afterwards built, taking the title in themselves for the benefit of plaintiffs and their brothers and sisters, seven in all; and the will directed that the property or its proceeds should be divided between these children when the youngest arrived at age. They lived on the land until that time. Meantime V. M. Bowdre, one of the owners, conveyed his interest to the plaintiff, W. B. Bowdre. The other six owners then gave a power of attorney to one Ward to sell the land for division of the proceeds, and he sold it to the plaintiffs, who paid the purchase-money and received from Ward a deed. The house that was originally on the place was destroyed by fire, and plaintiffs, after buying the...