Travelers' Fire Ins. Co. v. Price

• Citation: 152 So. 889,169 Miss. 531
• Decision Date: 26 February 1934
• Docket Number: 30862
• Parties: TRAVELERS' FIRE INS. CO. v. PRICE
• Court: United States State Supreme Court of Mississippi

152 So. 889

169 Miss. 531

TRAVELERS' FIRE INS. CO. v. PRICE

No. 30862

Supreme Court of Mississippi

February 26, 1934

1 INSURANCE.

Statute making soliciting agent the agent of insurance company is in derogation of common law, and must not be extended beyond its intent and terms (Code 1930, section 5196).

2 INSURANCE.

Statute making soliciting agent the agent of insurance company held applicable only to acts of agent before and up to and including consummation of insurance, and acts of agent in examination and adjustment of loss (Code 1930, section 5196).

3 INSURANCE.

Statute making soliciting agent the agent of insurance company held inapplicable to acts of soliciting and collecting agent after consummation of automobile fire and theft policy, alleged to constitute waiver of sole and unconditional ownership clause and clause prohibiting use of automobile as public conveyance for hire (Code 1930, section 5196).

4. INSURANCE.

Soliciting and collecting agent of insurance company is without power to modify contract of insurance or waive conditions.

5. INSURANCE.

Stipulation in automobile fire and theft policy that no agent of insurance company has power to waive terms of policy unless waiver be written upon or attached to policy held binding on insured, and insured was affected with notice of such stipulation, whether he actually knew thereof or not.

6. INSURANCE.

Alleged waiver of sole and unconditional ownership and public conveyance for hire clauses in automobile fire and theft policy, by soliciting and collecting agent without written indorsement on policy, held ineffective, and not binding on insurer.

ETHRIDGE, J., dissenting.

HON. W. H. POTTER, Judge.

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

Action by Mrs. Dwight L. Price against the Travelers' Fire Insurance Company. From a judgment for the plaintiff, the defendant appeals. Reversed, and judgment entered for the defendant.

Reversed and judgment here for appellant.

Green, Green & Jackson, of Jackson, for appellant.

Mr. Taylor was not an agent of the Travelers' Fire Insurance Company, so as to be able to waive any express provisions of the contract.

Cain v. State, 103 Miss. 701, 60 So. 731.

The powers possessed by agents of insurance companies like those of any other corporation, or of an individual principal, are to be interpreted in accordance with the general laws of agencies. No other or different rule is to be applied to a contract of insurance than is applied to other contracts. The agent of an insurance company possesses such powers only as have been conferred verbally or by the instrument of authorization or such as third persons have a right to assume that he possesses under the circumstances of each particular case.

Germania Life Ins. Co. v. Bouldin, 100 Miss. 660, 56 So. 609.

A principal may employ an agent with limited power and the agent cannot bind his principal by an agreement beyond the scope of his authority, and the persons dealing with the agent must know the agent's powers and cannot hold the principal on any agreement beyond the power of the agent.

Phillip Gruner Lbr. Co. v. Algonquin Lbr. Co., 123 Miss. 157, 85 So. 191.

Mr. Price and Mrs. Price were charged with knowledge as to the extent of the authority and power of Mr. Taylor in writing the insurance and there is nothing in this record to disclose that he had any authority from the Travelers' Fire Insurance Company to do or perform any act in their behalf and, therefore, whatever he may have done was not sufficient to have bound the company by waiver and estoppel.

Isnert-Hincke Milling Co. v. Natchez Baking Co., 124 Miss. 205, 86 So. 588; Royal Feed, etc., Co. v. Thorn, 142 Miss. 92, 107 So. 282; Phillip Gruner, etc., Co. v. First National Bank, 143 Miss. 454, 109 So. 274; R. T. Polk Cotton Co. v. Bethal, 136 Miss. 154, 96 So. 305.

Admitting, however, that under the statute, section 5196, Mississippi Code of 1930, and the construction placed thereon in numerous decisions, Mr. Taylor was the agent of the insurance company, which admission is solely for the sake of argument, and not made so as to waive the argument hereinabove, we submit, with deference, that there was no waiver by Taylor of the express conditions of the policy on the facts as disclosed in this record, and that he could not by that which he did, waive the conditions and provisions of the policy with reference to limitation of use and with reference to title and ownership.

Liverpool, etc., Ins. Co. v. Sorsby, 60 Miss. 302; Big Creek Drug Co. v. Stuyvesant Ins. Co., 115 Miss. 333, 75 So. 768; 3 Cooley Briefs on Law of Insurance 2524; Hartford Fire Ins. Co. v. Clark, 154 Miss. 418, 122 So. 551; Mitchell v. Ins. Co., 72 Miss. 53, 18 So. 86; Insurance Company v. Randle, 81 Miss. 720, 33 So. 500; Liverpool, etc., Insurance Company v. Van Os, 63 Miss. 431, 56 Am. Rep. 810; Springfield Ins. Co. v. Nix, 162 Miss. 669, 138 So. 598.

Whatever Mr. Taylor said in the instant case to the husband of the appellee was purely an expression of opinion as to the legal effect of contractual provisions on which lawyers and judges have differed and which expression was wholly insufficient to waive the provisions of the contract and make a new contract between the parties.

Howie & Howie, of Jackson, for appellee.

Dwight Taylor, a soliciting and collecting insurance agent, knew of the facts concerning the title and ownership of the automobile involved and the purposes for which it was being used, and stated to the agent of appellee, her husband, that this made absolutely no difference insofar as the policy was concerned.

The forfeiture clauses in the policy of insurance involved herein were waived by the agent.

Sec. 5196, Code of 1930; Hartford Fire Ins. Co. v. Clark, 154 Miss. 418, 122 So. 551; Stonewall Life Ins. Co. v. Cooke, 144 So. 217, 165 Miss. 619.

An agent, under our statute, is the agent of the company for the purpose for which he is employed, and as to what he is authorized to do, and his knowledge, acquired while so acting, is the knowledge of the company as to all such matters.

Hartford Fire Ins. Co. v. Williams, 145 So. 94, 165 Miss. 233; Herring v. State Farm Mutual Auto Ins. Co., 148 So. 233.

The above cases hold that a soliciting agent for an insurance company who has knowledge of any facts contrary to the provisions of the insurance policy, may waive them, and that such waivers by such agent will be binding upon the company. If there was any dispute as to the knowledge of the insurance agent concerning the facts, then the question is to be left to the jury. But there is no contradiction of the statements by witnesses for appellee, and their testimony must be taken as true.

Big Creek Drug Co. v. Stuyvesant Ins. Co., 75 So. 768, 115 Miss. 333.

Provisions of insurance policies may be waived by the agents and when so done by the agents are binding upon the company, and the insurer is estopped to deny liability under the policy.

Henry Clay Fire Ins. Co. v. Grayson County State Bank, 39 S.W.2d 482, 239 Ky. 239; Queen Ins. Co. v. Patterson Drug Co., 73 Fla. 665; Vulcan Ins. Co. v. Johnson, 74 Ind.App. 62, 128 N.E. 664; American Ins. Co. v. Woolfolk, 169 N.E. 342; Avery v. Mechanics Ins. of Philadelphia, 295 S.W. 509; East Side Garage v. New Brunswick Fire Ins. Co., 190 N.Y.S. 634; Hartford Ins. Co. v. Buckwalter Lbr. Co.,77 So. 798, 116 Miss. 822; Fidelity-Phenix Fire Ins. Co. v. Redmond, 111 So. 366, 144 Miss. 749.

Under section 5196, Code of 1930, this agent, who was the soliciting and collecting agent under the terms and provisions of the statute, had the authority to waive the provisions of the policy and he did so, and the insurer was bound by the waiver of the provisions and is estopped to deny liability thereunder.

Argued orally by Forrest B. Jackson, for appellant, and by W. B. Fontaine, for appellee.

Anderson, J., Smith, C. J., concurring. Ethridge, J., dissenting.

OPINION

Anderson, J.

Appellee brought this action against appellant on an automobile insurance policy issued by appellant to appellee on the 4th day of October, 1932, insuring appellee against loss of her Chevrolet automobile by theft or fire, alleging that while the policy was in force the automobile was stolen and afterwards destroyed by fire. Appellant defended upon two grounds, namely: That appellee had violated the sole and unconditional ownership clause of the policy, also the clause providing against the use of the car as a public conveyance for hire. The court directed a verdict for appellee. Judgment was entered accordingly, from which appellant appeals.

Appellee's reply to those defenses was that those clauses of the policy had been waived by the appellant.

The policy contained the usual sole and unconditional ownership clause. It provided, among other things, that if appellee's interest in the automobile should "be or become other than unconditional and sole lawful ownership . or in case of transfer or termination of the interest of the assured other than by death of the assured, or in case of any change in the nature of the insurable interest of the assured in the property described herein, either by sale or otherwise," the policy should be void, unless provided by agreement, in writing, attached thereto; and also if the automobile should be "used as a public or livery conveyance for carrying passengers for compensation," the policy should become void, unless otherwise provided by agreement, in writing, attached thereto. The policy concluded with this paragraph: "This policy is made and accepted subject to the provisions, exclusions, conditions and declarations set forth herein or endorsed hereon, and upon acceptance of this policy the...