St. Paul Fire & Marine Ins. Co. v. Loving

Citation163 Miss. 114,140 So. 727
Decision Date11 April 1932
Docket Number29920
PartiesST. PAUL FIRE & MARINE INS. Co. v. LOVING
CourtUnited States State Supreme Court of Mississippi

Division B

1 INSURANCE. Evidence held to support finding that insured under fire and theft policy, did not represent to insurer's agent that automobile was taught new, as stated in policy.

Fire and theft insurance policy issued to plaintiff contained representation that plaintiff had purchased the automobile for a stipulated price "new in December, 1930." Policy contained stipulation by the terms of which plaintiff warranted the truth of that statement, and a provision that if the statement was not true the policy should be void. Insurer, after theft of automobile and destruction by fire refused payment under the terms of policy upon the ground that the plaintiff had purchased the car secondhand, and not new, and that therefore the policy was void.

2. REFORMATION OF INSTRUMENTS.

Evidence held to support finding that representation In fire and theft policy, that insured purchased automobile new, resulted through misunderstanding and fault of Insurer, warranting reformation (Code 1930, section 5196).

3. INSURANCE.

Insurer's agent who inspects risk, issues and delivers policy and collects premium is "general agent" of insurer, and therefore his knowledge is knowledge of insurer (Code 1930, section 5196).

4. INSURANCE.

Where general agent of insurer makes independent Investigation regarding description, character, and condition of property to be insured, and in policy erroneously describes property, equity will reform policy to effectuate parties' Intention.

HON. D. M. RUSSELL, Chancellor.

APPEAL from the Chancery Court of Harrison County, HON. D. M. RUSSELL, Chancellor.

Suit by Mrs. E. J. Loving against the St. Paul Fire & Marine Insurance Company. Decree for the plaintiff, and the defendant appeals. Affirmed.

Affirmed.

T. J. Wills, of Hattiesburg, for appellant.

There is a strong presumption that parties who have reduced their agreement to writing have deliberately, adequately and honestly expressed their agreement therein. The evidence to reform such an instrument, to correct alleged mistakes therein or to vary the terms thereof must be clear and convincing--so clear as to be almost free from doubt.

Griffith's Miss. Chan. Prac., par. 589 and Miss. cases cited in footnote 79.

Whether or not a party actually read his policy after it came into his possession, he is bound by the warranties which he made in answer to certain material facts necessary to the making incidentally of the contract.

Springfield Fire & Marine Insurance Co. v. Nix, 138 So. 598.

The court cannot rewrite this policy of insurance so as to make a different contract than that made by the parties. The provision in the policy was valid and binding.

Home Insurance Company v. Harding, 139 So. 603.

R. A. Wallace, of Gulfport, for appellee.

Where an agent of an insurance company inspects a risk, accepts on application for insurance for his principal, issues and delivers the policy of insurance for his principal, and accepts and receipts for the premium due upon the policy of insurance, he is a general agent for the company, and knowledge to him is knowledge to the company.

Sec. 5196, Code 1930; Big Creek Drug Co. v. Stuyvesant Ins. Co., 115 Miss. 333, 75 So. 768, 76 So. 548; Lamar Life Ins. Co. v. Kemp, 154 Miss. 890, 124 So. 62; Interstate Life & Accident Ins. Co. v. Ruble, 133 So. 223; Agricultural Ins. Co. v. Anderson,120 Miss. 278, 82 So. 146; Hartford Fire Ins. Co. v. Clark, 154 Miss. 418, 122 So. 551.

Where the agent of an insurance company makes an independent investigation of his own as to the description of an automobile to be insured by his principal, and, in the issuance of a policy of insurance by him for his principal, he erroneously describes the automobile in the policy of insurance covering it, a court of equity will reform the policy of insurance so that it will correctly recite the true description of it, and effectuate the intention of the assured and the insurer.

Big Creek Drug Co. v. Stuyvesant Ins. Co., 115 Miss. 333, 75 So. 768; Agricultural Ins. Co. v. Anderson, 120 Miss. 278, 82 So. 146; Hartford Fire Ins. Co. v. Clark, 154 Miss. 418, 122 So. 551; McAllister v. Richardson, 103 Miss. 418, 66 So. 570.

OPINION

Anderson, J.

Appellant insured appellee's De Soto eight-cylinder automobile in the sum of one thousand, one hundred fifty dollars against loss by theft or fire. The policy of insurance contained the representation that appellee had purchased the car for one thousand, one hundred fifty dollars new in December, 1930. There was also a stipulation in the policy by the terms of which appellee warranted the truth of that statement, and a provision that if the statement was not true the policy should be void. Appellee's car was stolen and destroyed by fire. She made claim to appellant for the loss. Appellant refused payment upon the ground that appellee had purchased the car secondhand and not new, and therefore under the policy there was no liability. Appellee thereupon filed her bill seeking to reform the policy and recover the loss upon the ground of mutual mistake between the parties in that when the car was insured it was not represented by appellee and understood by appellant, that she had bought it new, as set forth in the policy. Appellant answered the bill denying its material allegations. There was a hearing on bill, answer, and proofs resulting in a decree reforming the policy as prayed for in appellee's bill, and awarding her the sum of one thousand, one hundred fifty dollars, the value of the car. From that decree appellant prosecutes this appeal.

There was no real conflict in the evidence, which was substantially as follows: On the 16th day of December, 1930, appellee purchased from her brother-in-law, A. G. Woodcock, the car,--a De Soto straight eight, four-door sedan, model 1930, motor No. 13079, serial No. L-115 HD --for which she paid him the sum of one thousand, one hundred fifty dollars. Woodcock had purchased the car new about two and a half months prior to the time he sold it to appellee, paying therefor the sum of one thousand, two hundred fifty dollars. The car had been run about three thousand miles when purchased by appellee. One thousand, two hundred fifty dollars was the cash selling price of the car new at Gulfport. When the appellee bought the car it appeared to be new and was in excellent condition and had a cash value of one thousand, one hundred fifty dollars. Four days after appellee bought the car she requested Mr. Palmer of the ...

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