St. Louis Fire & Marine Ins. Co. v. Lewis, 45525

• Decision Date: 19 January 1970
• Docket Number: No. 45525,45525
• Citation: 230 So.2d 580
• Parties: ST. LOUIS FIRE AND MARINE INSURANCE COMPANY v. S. W. LEWIS.
• Court: Mississippi Supreme Court

Page 580

230 So.2d 580

ST. LOUIS FIRE AND MARINE INSURANCE COMPANY v. S. W. LEWIS.

No. 45525.

Supreme Court of Mississippi.

Jan. 19, 1970.

Satterfield, Shell, Williams & Buford, K. Hayes Callicutt, Jackson, for appellant.

Scales & Scales, Fred T. Rucker, Jackson, for appellee.

INZER, Justice.

This is an appeal by St. Louis Fire and Marine Insurance Company from a judgment of the Circuit Court of the First Judicial District of Hinds County awarding appellee, S. W. Lewis, the sum of $3,000 for the death of a horse alleged to have been insured by appellant. We affirm as to liability and reverse and remand for another trial on the question of the value of the horse.

The declaration charged, and the proof shows, that on May 10, 1966, appellant insured the life of a horse named Magnolia Dandy owned by appellee. By the terms of the policy issued, it covered the actual cash value of the horse, not to exceed $4,000. In the early part of February 1967, appellee sold Magnolia Dandy and he contacted Mr. Dan Charbonnet, the agent through which he had purchased the policy, and informed him that he had sold Magnolia Dandy and requested that the policy be modified or changed to cover a horse named Kaplan Twist. Mr. Charbonnet advised Mr. Lewis that before the change could be made it was necessary that he make an application requesting the change and to furnish a veteriarian's certificate showing the horse to be in good health. Mr. Lewis complied with the requirements and on Friday, February 17, 1967, Mr. Charbonnet had in his possession the necessary papers. He attempted to call Mr. Chervenak, appellant's general agent in Dallas, Texas, to effect the change but was unable to reach him on that day. On the following Monday morning he did reach Mr. Chervenak, and, according to the testimony of Charbonnet, he advised him of the application and requested that the modification be made, and that Chervenak advised him that it would be done and that the horse was covered as of that time. Mr. Charbonnet then advised Mr. Lewis that the change had been accomplished and that Kaplan Twist was covered by the policy. On February 22, 1967, Kaplan Twist died and on the following day Dr. J. W. Brandon, a veterinarian with the Mississippi State Livestock Sanitary Board, performed an autopsy on the horse. The autopsy revealed that the horse had a twisted torsion of the mesentaric attachment of the ileum which resulted in a complete cessation of blood flow. This resulted in a rupture of the stomach and diaphragm. In lay language, Dr. Branson explained that what happened was that the intestinal tract, which is attached to the backbone, had become twisted and the blood vessels which ran into the intestinal tract were twisted and the blood supply cut off. This interfered with the normal digestive process and caused gas to build up in the stomach of the horse to such an extent that the stomach exploded forcing the contents into the lung cavity of the horse, and thus, the diaphragm to explode. Dr. Branson explained that if the horse is not seen by a veterinarian within an hour of the accident causing such twisting, the results would always be fatal.

Mr. Chervenak testified in behalf of appellant and stated that he was the general agent of appellant and as such he had the authority to bind his principal in an oral contract of insurance so as to cover the horse Kaplan Twist, but denied that he ever did so in writing or in the conversation with Mr. Charbonnet. He admitted that Mr. Charbonnet talked to him about making the change, but he denied that he ever told Mr. Charbonnet that the policy was in effect.

Appellant assigns as error the action of the trial court in overruling its demurrer to the declaration. Appellant argues that this is a suit on an insurance contract, and since the policy sued upon and attached as an exhibit shows on its face that it covered a horse named Magnolia Dandy and not the horse sued for, the suit could not be maintained until the policy was reformed to cover the horse Kaplan Twist. We find no merit in this contention for the reason that the allegations of the declaration are sufficient to charge that the policy was modified by a subsequent oral agreement to insure the horse Kaplan Twist. The policy was attached to show the terms of the contract as modified. The fact that the original insurance contract was in writing does not prohibit it from being modified by a subsequent oral agreement. The general rule in this regard is stated in 43 Am.Jur.2d Insurance § 353 (1969) under the title 'Modification,' to be as follows:

In accordance with the rule prevailing as to contracts generally, the parties to an insurance contract may make such lawful alterations and modifications thereof as they may mutually agree upon. The modification may be in writing, as by an indorsement upon the policy itself or by a new contract, and an insurance company has...