Springfield Fire & Marine Ins. Co. v. Nix, 29717

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: McGowen, J.
• Citation: 162 Miss. 669,138 So. 598
• Parties: SPRINGFIELD FIRE & MARINE INS. CO. v. NIX
• Docket Number: 29717
• Decision Date: 11 January 1932

138 So. 598

162 Miss. 669

SPRINGFIELD FIRE & MARINE INS. CO.
v.
NIX

No. 29717

Supreme Court of Mississippi

January 11, 1932

Division A

1. INSURANCE.

Statements made by assured regarding cost and other information respecting insured automobile, and written in policy in section styled "Warranted by Assured," were warranties.

2. EVIDENCE.

It is common knowledge that man of ordinary intelligence cannot judge value of secondhand car by its outward appearance.

3. INSURANCE.

Warranty must be literally true, whether material or not.

4. INSURANCE.

As respects agent's alleged error, insured was presumed to have read automobile policy, and was bound by contract and warranties appearing on face thereof.

5. INSURANCE.

Insured, by retaining policy for month without calling insurer's attention to material error made by agent, if any, in recording answer to question regarding cost of automobile, adopted answer in policy as true.

[162 Miss. 670]

6. INSURANCE.

Where assured paid one hundred fifty dollars for automobile, but retained policy showing cost to be two thousand two hundred fifty dollars without attempting to correct error, he could not recover on policy.

HON. W. J. PACK, Judge.

APPEAL from circuit court of Jones county HON. W. J. PACK, Judge.

Action by C. L. Nix against the Springfield Fire & Marine Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Reversed, and judgment here for appellant.

Watkins, Watkins & Eager, of Jackson, for appellant.

The appellee answered the question at his peril and accepted the policy knowing, or charged with the knowledge, that a false answer thereto would render the policy void.

Home Ins. Co. v. Cavin, 137 So. 490, 491.

There is a well-recognized distinction between "representations" and "warranties." A warranty must be literally true and its materiality cannot be the subject of inquiry. A representation needs only to be substantially true, and if it is not material to the risk, in the absence of fraud, its falsity will not invalidate the policy.

Citizens National Life Ins. Co. v. Swords, 109 Miss. 635, 68 So. 920; Sovereign Camp Woodmen of the World v. Prince, 141 Miss. 381, 106 So. 521.

It is apparent that appellee's warranty as to the price he paid for the car was false. This being so, he cannot recover.

Kiefer v. Girard Fire, etc. , Ins. Co., 132 A. 706; Benvenuto v. Central, etc., Insurance Co., 80 Pa. S.Ct. 213; Miller v. Commercial Union Assurance Co., 125 P. 782, 69 Wash. 529.

Under the circumstances under which the car in the case at bar was inspected by the agent, there can certainly [162 Miss. 671] be no justification for these misrepresentations in this policy.

Miller v. Commercial, etc., Ins. Co., 125 P. 782, 69 Wash. 529.

The assured is conclusively presumed to have read his policy and is bound by its provisions, and is bound by the warranties appearing on the face of the policy, and by his silence, ratified, confirmed and adopted the answers as contained in the policy as being his answers and being literally true.

Home Mutual Fire Ins. Co. v. Pittman, 111. Miss. 420, 71 So. 739; New York, etc., v. O'Dom, 100 Miss. 219, 56 So. 379, Ann. Cas. 1914A, 583; Maryland Casualty Co. v. Adams, 159 Miss. 88, 131 So. 544; Germania Life Ins. Co. v. Bouldin, 100 Miss. 660, 59 So. 609; Nat'l Union Fire Ins. Co. v. Provine, 148 Miss. 659, 114 So. 730; Texas State Mut. Fire Ins. Co. v. Richbourg, 257 S.W. 1089; Standard Auto Ins. Assn. v. West, 262 S.W. 296, 203 Ky. 335; Reynolds v. Atlas Ins. Co., 71 N.W. 831.

F. B. Collins, of Laurel, for appellee.

Where an applicant goes to an agent authorized to execute insurance policies for an insurance company and there makes true statements with reference to his application therefor, and the agent, by carelessness, inadvertance, or misunderstanding, writes something else other than what the applicant told him into the application or policy, then the company is estopped to void the policy or deny liability thereunto, because of such misstatements.

Indemnity Company of America v. Jenkins, 107 So. 208; Home Insurance Company v. Gibson, 17 So. 13; Creed v. Sun Fire Office of London, 14 So. 323; Insurance Company v. Garner, 77 Ala. 210; Williamson v. Association, 84 Ala. 106, 4 So. 36; Insurance Company v. Smith, 9 So. 327; Insurance Company v. Alexander, 12 So. 25.

Argued orally by W. H. Watkins, Jr., for appellant.

OPINION

[162 Miss. 672] McGowen, J.

Nix, the assured, recovered a judgment in the lower court against the Springfield Fire & Marine Insurance Company, the insurer, for four hundred dollars. The recovery was had upon an insurance policy, issued by the insurer to the assured, covering one Marmon car for six hundred dollars.

The policy contained the following provision: "This entire policy shall be void if the assured has concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof; or in case of any fraud, attempted fraud, or false swearing by the assured touching any matter relating to this insurance or the subject thereof, whether before or after a loss."

On the first page of the policy appears section D, styled "Warranted by the Assured," and under section 3 of section D appears the following:

"The description of the...