Taylor v. Fireman's Fund Ins. Co.
| Decision Date | 23 December 1974 |
| Docket Number | No. 47743,47743 |
| Parties | Cecil F. TAYLOR v. FIREMAN'S FUND INSURANCE COMPANY. |
| Court | Mississippi Supreme Court |
Davey L. Tucker, Jackson, for appellant.
Watkins & Eager, Jackson, for appellee.
Cecil F. Taylor brought suit against Fireman's Fund Insurance Company in the Circuit Court of the First Judicial District of Hinds County, Mississippi, to recover $10,000, the full amount of the coverage on a house that had burned. Taylor claimed that he was the sole owner of the house, that it was a total loss, and that in addition to the $10,000 coverage he was entitled to recover $390 loss of rent and $5,000 punitive damages.
Fireman's Fund pleaded as an affirmative defense the failure of Mr. Taylor to comply with these provisions of the insurance policy:
'This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in the case of any fraud or false swearing by the insured relating thereto.
'(W)ithin sixty days after the loss, unless such time is extended in writing by this Company, the insured shall render to this Company a proof of loss, signed and sworn to by the insured, stating the knowledge and belief of the insured as to the following: the time and origin of the loss, the interest of the insured and of all others in the property, the actual cash value of each item thereof and the amount of loss thereto, all encumbrances thereon, all other contracts of insurance, whether valid or not, covering any of said property, any changes in the title, use, occupation, location, possession or exposures of said property since the issuing of this policy, by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of loss . . . The insured, as often as may be reasonably required, shall exhibit to any person designated by this Company all that remains of any property herein described, and submit to examinations under oath by any person named by this Company, and subscribe the same; . . ..' (Emphasis added).
When both sides rested, the defendant moved for a peremptory instruction, and the court sustained defendant's motion.
Appellant assigns as error:
1. The granting of the peremptory instruction.
2. The failure of the trial court to find that appellee was estopped by its conduct from denying liability.
3. The use of the examination under oath to void the policy.
4. The admitting into evidence of Appellee's answers to appellant's interrogatories.
Cecil F. Taylor testified that on April 25, 1972, he called Matthew W. Thomas, Jr., of the Statewide General Insurance Agency, and said:
(Emphasis added).
The policy issued in accordance with Taylor's request shows 'Mr. Cecil Taylor, 1840 Barrett Street, Jackson, Mississippi' as the sole insured. The amount of insurance against fire shown in the policy was $10,000.
The Warranty Deed dated May 6, 1972, and recorded on May 10, 1972, recited that the property was conveyed to 'MAUDE L. TAYLOR, A SINGLE WOMAN, AND CECIL F. TAYLOR, as joint tenants with full rights of survivorship and not as tenants in common,'.
Cecil Taylor testified at the trial that he went all through the house on May 13, 1972. The house was completely destroyed by fire about 3:00 A.M. May 15, 1972. Taylor testified at the trial that he contacted his insurance agent, Thomas, and Thomas had R. L. Hewitt of the General Adjustment Bureau get in touch with appellant. Taylor testified that after the fire he went through the house and that the kitchen was almost burned off from the rest of the house.
Taylor, on May 23, 1972, signed a NonWaiver Agreement, which recited:
'IT IS AGREED that any action taken by the insurance company, or companies, signing this agreement in ascertaining the amount of the actual cash value; and the amount of the loss and damage which occurred May 14, 1972, to Dwelling located at 1840 Barrett Street, Jackson, Mississippi and in investigating the cause thereof, shall not waive or invalidate any of the conditions of the policies of insurance, and shall not waive or invalidate any rights whatever of any party to this agreement.
'NOTICE, is hereby given and accepted, and it is hereby mutually understood and agreed, that no representative of any insurance company signing this agreement has power or authority to waive any of the conditions of their respective policies, unless such waiver be specifically made in writing.
'THE SOLE OBJECT AND INTENT of this agreement is to provide for the determination of the amount of the actual case value and the amount of the loss and damage, and an investigation of the cause thereof, without regard to the liability of said insurance companies, and to preserve all the rights of the insurance company, or companies, and the insured.' (Emphasis added).
Taylor testified that Hewitt advised him that he had found from the Land Records that Cecil Taylor only owned a 1/2 interest in the property at 1840 Barrett Street, and that Fireman's Fund could not pay him over $5,000 as a part owner. Taylor testified that he refused to accept that amount and demanded $10,000, the full amount of the policy.
Appellant testified that the appellee gave him notice of a hearing to be held in accordance with the terms of the policy, and that such hearing was held on August 18 and 21, 1972. Taylor was placed under oath and questions and answers were reduced to writing and subscribed to by Taylor before his attorney, Davey L. Tucker, on August 28, 1972.
At the close of the direct examination of Taylor at the trial in lieu of cross-examination, appellee offered as an exhibit the written transcript of the hearings on August 18 and 21, 1972, and the entire transcript was admitted into evidence.
The transcript recites in part:
Q Who is Maude L. Taylor?
A That's my aunt.
Q Why was she named as one of the grantees in this deed?
A -of joint venture and-
(Discussion off the record)
Q Now, why was she named as one of the grantees?
A Well, as I stated, we do joint venturing on various pieces of property. We buy and trade, you know, together sometime, property.
Q How much did she pay on the purchase price?
A How much did she pay on the purchase price?
Q Uh huh.
A Not anything at all.
Q I understand you to say that she advanced the $9,500.00 that you sent to Mr. Jefferson?
A Yeah, I said I borrowed it from her.
Q Then she paid nothing on the purchase price?
A No. I just-This is a transaction that-In other words, well, maybe I can explain it to you better. On various pieces of property if I think she can transact it for me a little better than I can then I use her, you know. And if I can transact some better for her, then she uses me. So that's the way we do.
Q Well, on this deed you put both names on the deed.
A Right, because I had her transacting the property with me, also.
Q Have you repaid her the $9,500.00 you borrowed?
A No, I haven't paid her all of it.
Q Have you paid her any of it?
A Yes.
Q How much?
A $4,000.00 on it, I believe.
Q Did you sign a note to her for the $9,500.00?
A Yes. I signed a check.
Q A check?
A Right.
Q On what Bank?
A On the First National Bank.
A Right.
Q And she holds that check?
A That's correct.
Q Has she deposited that check?
A No.
Q Did you have an account in the First National Bank in Jackson when you signed that check?
A Yes.
Q Did you have that much money in it?
A At the time I signed the check?
Q Yes.
A No.
Q Have you had that much in it since?
BY MR. TUCKER: Don't answer.
A I refuse to answer.
Q Do you have that much in it now?
BY MR. TUCKER: No answer.
A I refuse to answer that, also.
Q How did you pay the $4,000.00 that you say you have repaid Maude L. Taylor?
BY MR. TUCKER: No answer.
A I refuse to answer that.
Q Now, the property in question was damaged by fire May 14, 1972, is that correct?
A I believe so, right.
Q On or about May 25, 1972, Mr. R. L. Hewitt of General Adjustment Bureau discussed this fire loss with you, did he not?
A That's correct.
Q At that time you told him that Maude L. Taylor was your aunt and that she then owned a fifty-fifty interest in the house, did you not?
A I believe I might have made the statement to him that way.
Q Well, don't you know that you did?
A I don't recall. It has been such a pretty good while since we've been prolonging with this situation, I don't recall exactly whether I made the statement to him.
Q Do you deny making that statement to him?
A I don't deny it. I don't recall exactly how I made it.
Q Again on July 7, 1972, Mr. Hewitt came and talked to you about this thing again, didn't he?
A I don't remember the exact date but he came back and talked to me.
A I don't recall the date. I don't.
Q About a month ago?
A That I talked to him?
Q Yes.
A I tried to correspond with him on the telephone several times back at the office, but I don't recall what date it was and I don't recall what date it was I talked to him on the phone.
Q Well, on or about July 7, I want to ask you if you didn't tell Mr. Hewitt, again, that you and Maude L. Taylor owned the property fifty-fifty?
A I don't recall telling him that. I...
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