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

• Decision Date: 14 May 1917
• Docket Number: 19024
• Citation: 75 So. 255,114 Miss. 430
• Parties: ST. PAUL FIRE & MARINE INS. CO. v. MCQUAID
• Court: Mississippi Supreme Court

75 So. 255

114 Miss. 430

ST. PAUL FIRE & MARINE INS. CO. v. MCQUAID

No. 19024

Supreme Court of Mississippi

May 14, 1917

Division B

APPEAL from the chancery court of Hinds county, HON. O. B. TAYLOR Chancellor.

Suit by Edward F. McQuaid against the St. Paul Fire & Marine 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.

In the case of Thompson v. Phoenix Insurance Co., 136 U.S 195, at the bottom of page 296 the court lays down the rule as to what must be shown to entitle a person to the reformation of a written instrument. On page 296 the court said:

"We have before us a contract from which, by mistake, material stipulations have been omitted, whereby the true intent and meaning of the parties are not fully or accurately expressed. A definite, concluded agreement as to matters, which, in point of time, precede the preparation and delivery of the policy, is established by legal and exact evidence which removes all doubt as to the understanding of the parties."

The above quotation states the test by which the right to reform an instrument must be shown; that is, that before a party is entitled to reform a written instrument, he must show that there was a definite concluded agreement as to matters which, in point of time, precede the preparation and delivery of the policy--and it cannot stop at this--these facts must be shown beyond a reasonable doubt. Jones v. Jones, 88 Miss. 787; Moffett, Hodgkins Co. v. Rochester, 178 U.S. 373-385; 24 Am. & Eng. Ency. Law (2 Ed.), pp. 649, 650, and note.

If Mrs. McQuaid slept upon her rights until after a fire, certainly this Insurance Company ought not to be made to suffer for her negligence. She speaks in her testimony of what she intended to do, which is of no legal effect, unless it can be coupled with the same intention in the mind of the Insurance Company, or its authorized agents, and that there was a definite, concluded agreement prior in time to the execution of the policy entered into by Mrs. McQuaid and the authorized agents of the Insurance Company to make the contract and to change the assured, and on these facts the minds of the contracting parties must meet as they would in any other contract, and this must be shown beyond every other reasonable hypothesis. Mrs. McQuaid's testimony don't approximate this requirement of the law. She claims that she telephoned some unknown party in the office of Wharton & Roberts, and that this person answering the telephone, whether he be the porter or janitor, or some visitor in the office we don't know, but nothing is shown in the evidence to establish the fact that the person talking to Mrs. McQuaid, as she claims, had any connection whatever with the office of Wharton & Roberts, and certainly, whoever he might be, had no authority to change the contract and make a new contract of insurance by the insertion of a new name as the assured in the policy. Company v. McIntosh, 86 Miss. 236; 1 Cooley's Briefs on Insurance, page 372; Cooley's Briefs on Insurance, p 368; Wilczinski v. L. N. O. & T. Railroad Co., 66 Miss. 595-610; See, also, 20 Am. & Eng. Ency. Law (2 Ed.), 811, 24 Am. & Eng. Ency. Law (2 Ed.), 656; Oswald v. McGehee, 28 Miss. 340; 2 Pomeroy's Eq. Jur., 839-860; 1 Story on Eq. Jur., 200; 24 Am. & Eng. Ency. Law, p. 656.

The acceptance of this policy as first written to McQuaid and Fitzgerald by the agent, Bridges, and its subsequent delivery to Mrs. McQuaid without objection, made the same binding upon her and this appellee as to all its terms and conditions. Rosenstock v. Insurance Co., 82 Miss. 674; Insurance Company v. Bouldin, 100 Miss. 677; Home Mutual Fire Ins. Co. v. Pittman, 71 So. 739.

TELEPHONE COMMUNICATIONS.

It was argued in the court below before the chancellor by the attorneys for appellee that, Mrs. McQuaid having testified in her deposition that she telephoned the office of Wharton & Roberts requesting a change in this policy from "McQuaid & Fitzgerald to Edward F. McQuaid, a minor;" that she thought the policy was written in the Hamilton Insurance Company. This constituted a contract with this Insurance Company, appellant, without identification of the party at the other end of the line and without showing that such party had any authority to bind this appellant. On page 29 of the record she states that she told the person answering the telephone that she wanted to have the insurance transferred from "McQuaid & Fitzgerald to Edward F. McQuaid, a minor, Mrs. Margaret McQuaid, guardian." These are two different requests, altho evidently intended to mean the same thing, claimed by Mrs. McQuaid to have been telephoned to the office of Wharton & Roberts after she heard from her lawyer, Mr. Alexander, that the court had approved of the partition of the realty. Now, this partition of the realty, as the court will see on page 80 of the record, was made by the commissioners appointed by the chancery court of Hinds county and filed June 26, 1909. Therefore, she had been permitting this policy to be written in the name of McQuaid & Fitzgerald from 1909 to May 17, 1915, the latter date being the date of the fire, and she now complains, after the fire, that she had given previous notice to change it. The question presented by this record is, can a person telephone to an insurance office to make a contract of insurance over the telephone with some person answering the telephone, without any proof that such person answering the telephone had any connection with the insurance office of the company sued, or any authority whatever to act for the company sued as its agent. Mrs. McQuaid in her testimony does not identify the person to whom she talked, thinking at first it was the voice of H. C. Roberts, and the party talking to her advised her that Mr. Roberts was not in the office, that he would not return for two hours, or possibly more. She then didn't know with whom she was talking, except that the party talking to her said: "I will fix it up for you." Mr. H. C. Roberts denied that he ever had any such conversation with Mrs. McQuaid and Miss Mix, the only other person in the office of Wharton & Roberts who had authority to change endorsements on policies or change the name of the assured, denies that she ever had any such telephone message, and these are the only ones thru whom Mrs. McQuaid could have made any binding agreement with the insurance company to change the assured from McQuaid & Fitzgerald to Edward F. McQuaid, appellee. She does not claim that she had any conversation with either one of these parties, and don't know who the person was talking at the other end of the line, with whom she claims to have had the agreement.

We say as a matter of law that this evidence is absolutely insufficient to bind any insurance company whatever on any such contract made in any such definite way. The party is not identified with whom Mrs. McQuaid claims to have had the conversation, no authority of such party is shown by which such party could bind the insurance company to the agreement as claimed by Mrs. McQuaid, and there is no definite, concluded agreement shown, prior in time to the execution and delivery of the policy, on which the minds of the parties had met in reference to the five essentials of an insurance contract which we have above set forth, on which Mrs. McQuaid could claim any contract was made by her with the insurance company sued in this case.

The court necessarily decided that the liability of this company must rest on the alleged telephone communication testified to by Mrs. McQuaid, because there is no other evidence on which liability could possibly be predicated.

The supreme court of Mississippi in the case Insurance Co. v. Odom, 100 Miss. 219, at the foot of page 240 lays down the rule that is the law everywhere, so far as we have been able to find it, which is as follows: "The burden of proof is upon him who asserts it to show a direct authorization of the agent or by proving such facts or circumstances, or such a course of conduct, as by implication it can be presumed that the agent was acting within the real or apparent scope of his authority. One rests on fact and the other on the supposed fact. But before the alleged principal is precluded from denying the existence of the supposed fact it is necessary that the other party should show that he was misled, not by the alleged agent, but by the principal."

If there is one scintilla of evidence in this entire record that the insurance company or its authorized agents H. C. Roberts or Miss Elizabeth Mix, misled Mrs. McQuaid in any way, we have been unable to find it out by any construction possible of Mrs. McQuaid's testimony, for both Roberts and Miss Mix deny that they ever had any conversation with Mrs. McQuaid and she don't claim that she talked to either of them. The law of agency established all over the country, as far as we can find, is that every person deals with an agent at his peril. He must know the extent of such agent's authority before he can bind the principal. But the attorney for the appellee have struck down all these laws, in this case and have led the court off on the doctrine announced in the case of Gilliland v. Southern Railway Co. (S. C.), 67 S.E. 20, 27 L. R. A. (N. S.) 1107, where this court erroneously held, in our judgment, that one who answers a telephone call from the place of business of the person called for and undertakes to respond as his agent is presumed to speak for him in respect to the general business carried on by such person at that place. This is a new rule of agency. 27 L. R. A. (N. S.) 1110.

The court will find the question of telephone communications fully discussed...