Scottish Union & National Ins. Co. v. Wylie

• Decision Date: 28 February 1916
• Docket Number: 17613
• Citation: 110 Miss. 681,70 So. 835
• Parties: SCOTTISH UNION & NATIONAL INS. CO. v. WYLIE
• Court: Mississippi Supreme Court

70 So. 835

110 Miss. 681

SCOTTISH UNION & NATIONAL INS. CO. v. WYLIE

No. 17613

Supreme Court of Mississippi

February 28, 1916

APPEAL from the circuit court of Harrison county. HON. J. I BALLENGER, Judge.

Suit by N. F. Wylie against the Scottish Union & National Ins. Co. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

McLaurin & Armistead, for appellant.

Griffith & Wallace, for appellee.

OPINION

SYKES, J.

Suit was instituted in the circuit court of Harrison county by the appellee, Wylie, against the appellant insurance company upon a policy of insurance for the amount of seven hundred and fifty dollars, insurance on personal property used in the livery and undertaking business, and consisting of a hearse carriages, wagons, etc. Under the instruction of the court the jury returned a verdict in favor of plaintiff and assessed his damages at seven hundred and nine dollars and eight cents. The facts in the case, briefly stated, are as follows:

On or about December 16, 1913, the appellee was informed by one Mr Tomlinson, the agent of appellant company at Gulfport, Miss., that a policy which appellant held on the above-described property had expired. Appellee then told Mr. Tomlinson to issue a policy on the same property for seven hundred and fifty dollars, to which Tomlinson replied that he could consider the insurance in effect from that minute. The policy was later written by the said agent, but was kept in his office until after the fire, which occurred December 24th, and in which fire the appellee sustained a total loss of all property covered by this insurance, except two surreys and two sets of harness. The premium of thirty-seven dollars and fifty cents on the policy was not paid by the appellee until after the fire, or some time during the month of January. At the time the policy was written there was a chattel mortgage on the personal property, and there was also another insurance policy on the property for the sum of seven hundred and fifty dollars. At the time the premium on the policy was paid to the insurance agent, the testimony further shows that he had knowledge of both the other insurance and the chattel mortgage on said property. The premium was retained by the agent, and was not offered to be returned until the trial of said cause, or until the pleadings were filed.

It is the contention of appellant that a fraud was practiced upon the insurance company by the appellee in the procuring of this insurance, and for that reason the policy was void and a nullity, and that no subsequent waiver by the agent of the company could breathe life into a policy which was void from its inception. In support of this contention, appellant relies principally upon the case of Insurance Co. v. Antram, 86 Miss. 224, 38 So. 626. The facts in the instant case do not justify the contention of appellant. There were no false or fraudulent representations whatever made by the appellee to the agent of appellant at the time he instructed him to write this insurance. The facts show that the appellee was notified by the agent of appellant that his insurance had expired, whereupon he told this agent to write him a policy for seven hundred and fifty dollars. No blank application for this insurance was given to the appellee to be made out. This being true, it follows that the agent of appellant, in making this contract, acted upon what information he already had as to the condition of the property and as to the condition of other insurance and mortgages upon the same. The testimony in the case shows that Tomlinson, as the agent of the appellant company, had the right to issue policies, collect the premiums therefor, cancel policies, and, in short, was their agent for all purposes connected with the insurance business in the city of Gulfport. The appellant company held him out as their agent, and they are bound by all his acts within the real and apparent scope of his authority. This being true, by his not asking for any information from the insured as to the condition of the policy or the condition of the property, he waived the benefits of the noninsurance and the nonmortgage clauses existing in said policy at that time; or rather he had no right to insert these two clauses in said policy, because they were not a part of the contract of insurance entered into between himself and the appellee--that contract simply being that he was to issue a policy on this property for seven hundred and fifty dollars regardless of any mortgages or any other insurance. The Antram Case, relied upon by appellant, simply decides this:

"If the assured made false statements to the agent of appellant, and thereby secured the issuance of a policy which, had the truth been stated, would not have been issued, the contract of assurance was never entered into, being absolutely vitiated by the fraud."

In the instant case, however, no false or fraudulent representations--in fact, no representations whatever--were made by the insured. In the case of Rosenstock Ex'r v. Insurance Co., 82 Miss. 674, 35 So. 309, the policy recited that the insurance would be void if the interest of the assured had not been truly stated to the company, or if it was not truly stated in the policy, or if the assured was not the sole and unconditional owner of the property described. The policy in that case had been delivered to and accepted by the insured. The facts developed that there had been a contract of sale of the property entered into, and a part of the consideration of same had been paid, of which the insurance company was ignorant. The court in that case held that the plaintiffs, by their silence and acceptance of the policy, agreed to the above terms; and for that reason the policy was void. In the case at bar, however, the policy was not delivered to the insured...