Stokes v. American Central Ins. Co., 37951

• Decision Date: 07 May 1951
• Docket Number: No. 37951,37951
• Citation: 52 So.2d 358,211 Miss. 584
• Parties: STOKES v. AMERICAN CENTRAL INS. CO.
• Court: Mississippi Supreme Court

Page 358

52 So.2d 358

211 Miss. 584

STOKES v. AMERICAN CENTRAL INS. CO.

No. 37951.

Supreme Court of Mississippi, Division A.

May 7, 1951.

Quitman Ross, Grover C. Doggette, Laurel, for appellant.

Denton Gibbes, Jr., Beard, Pack & Ratcliff, Welch, Cooper & Welch, Laurel, for appellee.

LEE, Justice.

This was a suit by C. M. Stokes to recover from American Central Insurance Company on a fire insurance policy which covered household effects and personal property. The cause was transferred from the circuit to the chancery court. The pleadings were recast, and after the hearing, the original bill was dismissed, and the prayer of the cross bill was granted. Stokes appeals.

C. M. Stokes and Mrs. Doxie Stokes had been married about twelve years. They jointly owned a home in the City of Laurel, where they lived with an only daughter. On April 6, 1944, Stokes procured from the insurance company a fire policy on the household furnishings and personal property in the home to run for a period of three years. Shortly thereafter, he and his wife separated. On September 8th following, there was an agreed decree which provided for separate maintenance, custody of the child, and for Stokes to convey his one-half interest in the home to his daughter. He then moved out, taking only his personal effects. Later, on February 8, 1945, Mrs. Stokes obtained a divorce. On November 20, 1946, the home was destroyed by fire; and about two weeks later the insurance company paid the full amount of the insurance to Mrs. Stokes. About two years later, Stokes brought this suit to recover the face of the policy in his own right.

The sole question for determination was whether or not Stokes authorized the transfer of the policy to Mrs. Stokes and thus justified the insurance company in making payment to her.

Stokes testified that the policy of insurance was left in the home, and that Mrs. Stokes refused to turn it over to him. After the divorce, he talked to her over the telephone and she still refused to let him have it. He disclaimed any conversation about it with the agent of the insurance company prior to the fire. He did talk to the agent several days after the fire and was told that the matter had been taken care of by payment to Mrs. Stokes. His excuse for failure to report the loss and make a claim was that he did not have the policy. He neither assigned the policy to Mrs. Stokes nor authorized anyone else to do so; and did not consent to payment of the money to her.

Mrs. Stokes testified that, at the time of the separation, the policy was in the hands of Stokes. He brought it by the house one afternoon, while she was away, and left it on the desk because he rightfully knew it was hers. He had never tried to get her to give it up. On the day after the fire, she asked him to pay a balance on the premium so that she could collect the insurance money and rebuild. His reply was that she was getting the insurance and she should pay the premium herself.

The insurance agent testified that Mrs. Stokes requested a transfer of the policy to her. Pursuant thereto, he told Stokes about the request, and 'asked him if that was the way he wanted it, if that was all right to do.' Stokes 'told me to go ahead and transfer it, that he was glad to get out of that mess down there.' Shortly thereafter he made the transfer. This was months prior to the fire. After the fire and before any payment, there was another conversation with Stokes about a slight balance in his insurance account. At that time, Stokes said: 'You ought to collect that out of Mrs. Stokes. She is going to get the proceeds of this policy when the loss is paid.'

On this sharp dispute, the court expressly found as a fact that Mrs. Stokes requested the insurance agent to change the policy so as to make the loss, if any, payable to her; that Stokes authorized the change; and that the change was made.

Such finding is amply borne out by the evidence. The testimony for the appellee, if believed, showed clearly...