Stuyvesant Ins. Co. v. A. C. Smith Motor Sales Co.

• Decision Date: 14 April 1924
• Docket Number: 24067
• Citation: 99 So. 575,135 Miss. 585
• Court: Mississippi Supreme Court
• Parties: STUYVESANT INS. CO. v. A. C. SMITH MOTOR SALES CO. [*]

99 So. 575

135 Miss. 585

STUYVESANT INS. CO. v. A. C. SMITH MOTOR SALES CO. ^[*]

No. 24067

Supreme Court of Mississippi

April 14, 1924

Division A

Suggestion of Error Overruled April 28, 1924.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Suit by A. C. Smith Motor Sales Company against Stuyvesant Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Green & Green, for appellant.

I. No Contract of Insurance with Appellant Enforceable in This Action.

The declaration is upon a policy specifically payable to appellee. The assumpsit is sole, and no recovery can be had upon proof of any joint promise. Kimbrough v Ragsdale, 69 Miss. 674; Spann v. Grant, 83 Miss. 23; Bacot v. Insurance Co., 96 Miss. 223.

Now, in this case the Capital National Bank has not in any way sued. At the time of the bringing of the suit, the plaintiff was without a right to sue; and, with the utmost deference, when at the time of its institution, a plaintiff not vested with a cause of action against the defendant has no right to sue, then no subsequent equity can be utilized to defeat the defendant. This point is thoroughly settled in Mississippi by the case of Winston v. Miller, 12 S. & M. 550; Terry v. Curd, 66 Miss 394. See Wiggle v. Thompson, 11 S. & M. 452; Winston v. Miller, 12 S. &. M. 550; Brown v. Bank, 31 Miss. 454; Salmon v. Smith, 58 Miss. 399; Bank v. Buddig, 65 Miss. 284; Wilkinson v. Light, Heat & Water Co. of Jackson, Miss., 78 Miss. 389.

Now, the Capital National Bank, being thus the sole party in interest, the cause of action vested solely in it.

II. There was no original contract of insurance entered into. The precise point is ruled in Insurance Co. v. Downing, 115 F. 482. See, also, Insurance Co. v. Graham, 181 Ill. 160.

In this case, there was a condition, viz.: approval by Smith, before there was a contractual obligation. Julienne, says Smith, could take or not take, without in any way being bound to take. And if one party to a contract may do or not do as he sees fit, then no contract results because mutuality of obligation is a condition precedent to contractual liability. Timber Co. v. Spann, 145 S.W. 540; Higbie v. Rust, 211 Ill. 333; Joliet Bottling Works v. Brewing Co., 245 Ill. 215; Buick Motor Co. v. Thompson, 138 Ga. 282; Flahive v. Mayor, etc., of City of Macon, 72 S. E. 271; Swindell v. First National Bank, 121 Ga. 714; Morrow v. Southern Express Co., 101 Ga. 810; Velie Motor Car Co. v. Kopmier Motor Car Co., 194 F. 324; Downs v. First National Exchange Bank, 91 U.S. 616, 25 L.Ed. 214; Bishop on Contracts (2 Ed.), 36; 9 Cyc. 327; Houser v. Hobart, 22 Idaho 735; Hazlehurst Lumber Co. v. Mercantile L. & S. Co., 166 F. 161; El Dorado Ice & Planing Mill Co. v. Kinard, 131 S.W. 460; Beasire & Co. v. Corn Products Mfg. Co., 94 N.E. 553; Hoffman v. Maffieli, 47 L.Ed. 427; Walker Mfg. Co. v. Swift & Co., 200 F. 529; Tarbox v. Gotzein, 20 Minn. 139; Campbell v. American Handle Co., 94 S.W. 811; Crane v. Crane Co., 105 F. 869; Jordan v. Indianapolis Water Co., 61 N.E. 12; Hailey v. Austrian, 19 Minn. 535; Cotton Oil Co. v. Kirk, 68 F. 791; Railroad Co. v. Baglay, 60 Kan. 424; Teiple v. Meyer, 81 N.W. 982; Hirsch v. Paragould, 127 S.W. 623; Tyler Ice Co. v. Coupland & Norman, 99 S.W. 133; Brewing Co. v. Kemp, 118 Ill.App. 566; Hazlehurst Lumber Co. v. Mercantile Lumber Co., 166 F. 192; Pioneer Box Co. v. Price Veneer & Lumber Company, 96 So. 105; Elliott on Contracts, page 50; Lumber Co. v. Insurance Company, 94 Wis. (1907) --; Hartford Fire Ins. Co. v. Trible, 78 S.W. 465; Kimball v. Insurance Co., 17 F. 625; Klein v. Insurance Co., 117 Mich. 469; Fire Insurance Co. v. Morris et al. , 18 So. 36; Insurance Co. v. Whitman, 75 Ohio 321; Baptist Church v. Fire Insurance Co., 23 N.Y. 161; Bradley v. Insurance Co., 112 App.Div. (N. Y. 1906) --; Worth v. Insurance Co., 64 Mo.App. 587; Insurance Co. v. Hogan, 77 N.E. 651; Clarke, Rosser & Co. v. Brand & Hammonds, 62 Ga. 24-25; Tyler v. Fire Insurance Co., 4 Rob. (N. Y. Supreme Court, 1868) 155; Schaffer v. Mutual Fire Insurance Co., 89 Pa. St. 296; Equitable Life Assurance Society v. McElroy, 83 F. 653; Insurance Co. v. Levy's Admr., 92 S.W. 325.

In this case there was not any approval of this contract, and by reason of there not being any approval of necessity, no obligation existed upon defendant.

III. This Action Is Barred.

Appellant did not seek, in any way, to transact business in Mississippi, but appellee sought, in virtue of a constitutional right, to make a contract with appellant then doing business in Tennessee. This is a Tennessee contract, made by an agent of the company in Tennessee, and having been made in Tennessee, this provision of the policy is absolutely binding, and no right existed in the Capital National Bank more than a year after the fire to institute an action hereunder, or to validate the one initially instituted by Smith. Ghio v. Assurance Co., 65 Miss. 532. See, also, Insurance Co. v. Holmes, 75 Miss. 390; Ward v. Insurance Co., 82 Miss. 129.

This policy, therefore, having been made in Tennessee, if made, made where the offer was accepted, must be governed by the Tennessee law, and, as we understand thereunder this time limit precludes recovery.

Teat & Potter, for appellees.

I.

The first point made by the appellant herein is that the plaintiff has no such interest in the cause of action as to warrant its bringing suit thereon. Upon the ground that the car having been mortgaged to the Capital National Bank and a mortgage clause having been attached to the policy and the plaintiff owing the said bank more than the amount due under the policy that the bank was the only party who could bring this suit. This precise question has been determined against the appellant in the case of Stewart & Company v. Coleman, 81 So. 653, 120 Miss. 28. Patterson v. Triumph Insurance Company, 64 Maine, 500, is also directly in point. See also, Graves v. Insurance Co., 46 Minn. 130; Turner v. Insurance Co., 109 Mass. 568; Green v. Fire Insurance Company, 77 N.E. (Mass. 1906); 649; Jackson v. Insurance Co., 5 Gray, (Mass.) 52.

II.

The second point is to the effect that there was no meeting of the minds between the parties as would make a contract in the case at bar. The court will bear in mind that in the instant case, Robinson & Julienne were not acting as the agent of the insurance Company but were acting as the broker and therefore the agent of the insured. While acting as such for and on behalf of the insured they made a contract wherein every essential element was placed in writing and for and on behalf of the insured, Robinson & Julienne accepted such contract.

We respectfully submit that the contract of insurance written by the general agents of the appellants, and mailed to the brokers, appellee's agents, to be delivered to the insured, constituted a binding and valid contract.

As a further answer to the second point made by the appellant, that is, that there was no meeting of the minds and therefore no contract entered into by and between the parties hereto, the court will note that when proof of loss was submitted to the appellant immediately after the fire upon the sole ground that the policy had been cancelled by telegram to Robinson & Julienne dated June 3, 1923.

This is of course a complete admission by the appellant that a valid and binding contract had been entered into and in addition it is a universal rule of law that when proof of loss is submitted under an insurance policy and liability denied upon one ground specifically, all other grounds are waived. National Life & Accident Insurance Co. v. Singleton, 69 So. 80; Georgia Home Insurance Company v. Allen, 128 Ala. 451, 30 So. 537; Douville v. Farmers Mutual Fire Insurance Company, 71 N.W. 517, 113 Mich. 158.

III.

The last point is that the action was barred by the statute of limitations of Tennessee. We submit that on a conflict of laws as to a question of limitation, the law of the Forum governs and certainly under the Mississippi laws this action is not barred.

Argued orally by Garner W. Green, for appellant, and Chalmers Potter, for appellee.

OPINION

ANDERSON, J.

Appellee, A. C. Smith Motor Sales Company, a corporation under the laws of this state, sued the appellant, the Stuyvesant Insurance Company, in the circuit court of Hinds county, on a fire insurance policy for a loss suffered by appellee in the burning of a Mitchell automobile covered by said policy, and recovered a judgment, from which appellant procures this appeal.

Three propositions argued deserve discussion at the hands of the court. They are:

(1) That there was no right of action in appellee, but that if one existed it was in the Capital National Bank, to whom there was a mortgage loss payable clause in the policy of insurance.

(2) That there was no binding contract of insurance.

(3) That the cause of action was barred under the laws of Tennessee, where the contract of insurance was made, and therefore barred under the laws of this state.

We will consider these questions in the order stated, and, in doing so under each head, will state the controlling facts out of which the question treated arises.

1. Has the appellee such an interest in this cause of action as authorizes it to maintain this suit?

The fire insurance policy in question contains the usual mortgage loss payable clause, payable to the Capital National Bank. Appellee was largely indebted to the Capital National Bank and had the mortgage loss payable clause inserted in the policy for the purpose of securing said indebtedness. At the time of the loss, appellee's indebtedness to the Capital National Bank was largely in excess of the amount of the loss. This suit was brought by...