Scotish Union & National Ins. Co. v. Bailey
| Decision Date | 11 June 1917 |
| Parties | SCOTISH UNION & NATIONAL INS. CO. v. BAILEY |
| Court | Mississippi Supreme Court |
March 1917
APPEAL from the circuit court of Choctow county, HON. H. H. RODGERS Judge.
Suit by D. E. Bailey against the Scottish Union & National Insurance Company. From a judgment for plaintiff, defendant appeals.
The facts are fully stated in the opinion of the court.
Reversed and remanded.
McLaurin & Armistead, for appellant.
We respectfully insist from this record that no waiver was proven, that as far as the language sworn to by Sides is concerned, alleged to have been used by Prewitt, it has no reference in the world to the policy. Prewitt may have told Sides that he had nothing to do with what Sides and Bailey did, that whatever they did between themselves did not concern Prewitt, but Prewitt, the court will remember, had just declined to put a mortgage clause on the policy at the request of Sides, and had advised Sides that to do so would make the policy void, and then to say that Prewitt, in the next breath, waived the provisions by telling Sides that what he (Sides) and Bailey did would be all right with Prewitt; i e., that Prewitt had no concern about it, waived the provisions of the policy which Prewitt was insisting on, is astonishing to think about. Coupled with this is the fact that Bailey don't claim that Sides ever told him what conversation he had with Prewitt and therefore the effort to claim that Sides went to see Prewitt as the agent of Bailey must fail, for the reasons (1) that Bailey didn't instruct Sides to do it; and (2) that Sides never told Bailey what conversation he had with Prewitt, as claimed by Sides; and (3) Sides' testimony in the record that his conversation with Prewitt was for the protection of his own interests and not that of effecting a waiver for Bailey; we insist that there was no waiver shown here and the objection to the testimony of Sides was well taken, and especially did the peremptory instruction requested reach every contention made by counsel for appellee. As stated in our original brief, where a peremptory instruction is requested, it brings into review the entire case, and counsel cannot succeed by making contentions on what was argued in the lower court.
We insist that this case ought to be reversed and judgment entered in the supreme court for the appellant.
J. L. Seawright, for appellee.
Surely in view of all the facts the Insurance Company, by the acts and words of its agent, waived the provisions of the policy with reference to the chattel mortgage and is estopped to set it up as a defense. Not only the declaration by Prewitt to Sides, "anything you and Bailey do will be alright," but the total absence of any attempt to cancel the policy or take it up after the information through Sides that he was going to take the deed of trust, and requesting a mortgage clause, coupled with the issuance of the removal permit two days after the information was imparted and the request made, the execution of the deed of trust taking place on the day in between the two visits made by Sides to Prewitt, is conclusive to our minds that Prewitt meant what he said; that anything Sides and Bailey did was all right, and that both took him at his word and acted upon it. That Prewitt had the authority, by parole, to waive the provisions of the policy, if this was a waiver, cannot be successfully questioned. This would be true even if the policy expressly provides that a waiver should be in writing and endorsed on the policy. Phoenix Ins. Co. v. Bowdre et al., 7 So. 596. That this was a waiver, is equally true. Flanders on Fire Insurance states the rule thus: "Where, however, the underwriter has notice of the additional insurance, and although not formally giving his consent thereto, yet by his acts...
To continue reading
Request your trial