Sylvania Ins. Co. v. Simmons

• Decision Date: 24 November 1930
• Docket Number: 28952
• Citation: 131 So. 94,158 Miss. 596
• Court: Mississippi Supreme Court
• Parties: SYLVANIA INS. CO. v. SIMMONS et al

131 So. 94

158 Miss. 596

SYLVANIA INS. CO. v. SIMMONS et al

No. 28952

Supreme Court of Mississippi

November 24, 1930

Division A

1. APPEAL AND ERROR.

General objection overruled will not be considered by supreme court unless there appears no purpose for which evidence was admissible.

2 TRIAL. General objection held insufficient to raise question of in competency of evidence establishing matter in avoidance of defensive matter because written notice was not filed (Code 1930, section 536).

In action on automobile theft policy, the insurer filed a plea of general issue and gave notice thereunder that it would offer evidence that insured failed to do certain things required by policy, and that therefore it was void and unenforceable. In sured filed no reply and filed no notice of any special matter they intended to give in evidence in avoidance of matters set out in insurer's notice, as required by Code 1930, section 536, but on the trial offered evidence that insurer waived provisions of policy relied upon.

HON. W H. POTTER, Judge.

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

Action by A. C. Simmons and another against the Sylvania Insurance Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Judgment affirmed.

Butler & Snow, of Jackson, for appellant.

Where, by the terms of a policy of insurance on property, the payment of the loss is to occur only after the furnishing of notice and certain proofs thereof, the furnishing of such notice and proofs constitute a condition precedent to any right of action thereon.

7 Cooley's Briefs on Insurance (2 Ed.), 5737.

Policies usually fix a definite time (for furnishing proofs of loss) usually sixty days, or less in some forms of insurance, within which proofs are required to be furnished. Such provisions are binding on the insured, and must be complied with, unless waived.

7 Cooley's Briefs on Insurance (2 Ed.), 5759; McPike v. Western Ins. Co., 61 Miss. 37.

The plaintiffs filed no notice whatever to the defendant of any special matter intended to be given in evidence in denial or avoidance of the matter set up in the special notice of the defendant filed herein and, therefore, there was no issue of waiver, which was undoubtedly special matter in avoidance before the court on the trial of this case and the court could not there and this court cannot here properly consider a waiver.

Section 541, Hemingway's Code 1927.

The only issue properly before the court was that set up in defendants notice and the proof of this special matter being undisputed and there being no other issue properly before the court, defendant's motion to exclude and to direct a verdict for the defendant should have been sustained. The motion to exclude and for a peremptory instruction, of course, carried with it every reason therefor.

Howie & Howie, of Jackson, for appellee.

The failure of the plaintiff to reply to the special notice filed under the general issue filed by the defendant is not a ground for reversal of this cause. The trial of the case was entered into without any objection by counsel for appellant being entered in the record as to failure of the plaintiff to reply to the special plea filed under the general issue.

Kinney v. Mobile J. & K. C. Ry. Co., 56 So. 165, 99 Miss. 795; Coleman v. Bowman, 99 So. 465, 135 Miss. 137.

The failure of an insured to furnish proof of loss may be avoided by an agent or adjuster.

McPike v. Western Assurance Co., 61 Miss. 37; Aetna Ins. Co. v. Holmes et al., 52 So. 801; Phoenix Ins. Co. of Brooklyn v. Bowdre et al., 7 So. 596, 67 Miss. 620; Shapiro v. Securities Co., 152 N.E. 370; Wholley v. Western Assurance Co., 174 Mass. 263, 54 N.E. 578; Springfield Fire & Marine Ins. Co. v. Booker, 226 P. 1028; National Union Fire Ins. Co. v. Crabtree et al., 237 S.W. 97; 2 Joyce on Ins. (2 Ed.), section 439.

OPINION

Cook, J.

The appellees, A C. Simmons and W. T. Howie, instituted this suit in the circuit court of the First district of Hinds county, against the appellant, Sylvania Insurance Company, on a policy of insurance issued by the appellant insuring the appellees in the sum of seven hundred dollars against loss by reason of the theft of a certain automobile owned by the appellee Simmons, and upon which the appellee Howie held a mortgage for the purchase price thereof, and, from a directed verdict and judgment in favor of the appellees, this appeal was prosecuted.

The policy sued on was in the usual form of theft insurance policies and contained the usual provisions that it should be void in the event of violation by the insured of any agreements, conditions, and warranties contained therein. To the declaration, the appellant insurance company filed a plea of the general issue, and gave notice thereunder that at the trial of the cause it would offer evidence to prove that the policy of insurance by the terms and conditions thereof provided that it should be void, in the event of a violation by the assured named therein, of any of the agreements, conditions, and warranties contained therein and that said policy provided that, in the event of loss or damage to property covered thereby, the assured should give immediate notice thereof to the company in writing; that the said policy also provided that within sixty days after any loss or damage, unless said time was extended in writing by the company, the assured should render...