Liverpool & London & Globe Ins. v. Hinton , 116 Miss. 754 ( 1917 )

Sykes, J.,

delivered the opinion of the court.

The appellee, S. M. Hinton, filed a bill in the chancery court of Jasper county against the appellant insurance company, L. L. Denison and Clyde Blankenship. The bill alleges that complainant owned a one-story frame building, which was his residence in the town of Bay Springs; that in January, 1910, he procured from the Jasper County Insurance Agency, a partnership composed of the defendants Denson and Blankenship, an insurance policy in the Liverpool & London & Globe Insurance Company to the extent of one thousand dollars insurance upon his dwelling and five hundred dollars insurance upon his household furniture, the insurance being for three years and expiring on January 21, 1913; that on the 21st day of January, 1913, the complainant communinated with the agents of the insurance company at their office in the Bank of Bay Springs, and reminded them that this insurance policy had expired, and told them that he wanted the policy renewed, and that these agents assured him that it would be renewed, and his property would continue to be protected by insurance; that at a later period in discussing additional insurance with them, they again told him that the one thousand five hundred dollar policy had been renewed; that he relied upon the agreements to renew and the representations that his policy had in fact been renewed; that on June 18, 1914, his house was burned, and his household goods were damaged to the extent of two hundred dollars, making his total loss one thousand two hundred dollars. Complainant alleges that the renewal policy should have been issued to him as agreed upon between him and the agents of the company, and that it should be treated as having been issued; that the insurance company denied liability. Complainant prays in the bill that the defendant insurance company be required to issue him a policy renewing the contract which he had up until the 21st day of January, 1913; that .the policy be issued, if necessary, as of that date for the term of three years; that the insurance company be held liable for the loss under the contract, or that, if the insurance company be held not liable, then that the said Denison and Blankenship be held liable for.violating their contract with complainant to renew the policy. The first insurance policy ,is made an exhibit to the bill.- It was issued for a-term of three years. The premium therefor was thirty-six dollars. The -answer of the insurance company admitted the issuance of the first policy, but denied that any renewal was ever agréed upon between its agents and complainant. The answer, in short, denies that any new policy was ever issued, or was ever agreed to be issued, to the complainant; denies that the agents did anything with reference to a renewal to bind the insurance company. The defndants Denson and Blankenship adopted the answer of the insurance company as theirs. The testimony introduced at the trial for the complainant showed the issuance of the first policy, the fire, and that his loss amounted to one thousand two hundred dollars in said fire. The complainant testified that on the evening of Januarjr 21, 1913, he went to the house of a neighbor, a Mr. Cheek, and with Mr. Cheek’s permission used his telephone; that he telephoned the bank, and was answered by Mr. Reid, the assistant cashier of the bank. He stated that he told Mr. Reid that his policy expired that day, and that he wanted him to renew it; that he did not want to be without insurance; that Mr. Eeid assured him that he would do so. He further testified that Mr. Denison and Blankenship, who were the president and cashier, respectively, of the bank, were the insurance agents, and operated under the name of the Jasper County Insurance Agency; that he was assured by Mr. Eeid that he would not let 'his policy run out of date. It was shown by the testimony of Mr. Eeid that the insurance business was handled in the bank, and that he had the authority and did as a matter of fact write the policies and renewals for the Jasper County Agency. The complainant, Mr. Hinton, further testified that, after the conversation with Mr. Eeid over the telephone about renewing his insurance, and before the fire occurred, he had a conversation with Mr. Blankenship in the bank, and asked him if he had attended to his insurance, and- also asked about taking out five hundred dollars additional insurance. He was informed in this conversation with Mr. Blankenship that he had, in effect, at that time one thousand five hundred dollars insurance, and he would be allowed to take out five hundred dollars more; that this conversation occurred about two months before the fire. The testimony of the defendants contradicted that of the complainant upon all material issues. The thirty-six dollar premium for the renewal policy was never paid by Mr. Hinton, and the policy was never delivered to him. Mr. Hinton stated that he kept some of his papers in the bank, among others a tornado policy, and that he meant to leave this renewal-policy also with the bank; that no bill had ever been presented to him for the payment of the premium; that he would have paid it on the presentation of the bill.' The testimony further shows that the first policy was issued to him on January 21, 1910, and that the premium on that policy was paid on February 3, 1910, a few weeks after it was issued. The testimony of one of the defendants shows that they kept insurance accounts just as a merchant keeps accounts, and presented their bills for insurance when they were due. Since they deny that this policy was in force, there was, of course, no bill presented for the premium. The testimony is uncontradicted that Mr. Eeid, the assistant cashier of the bank, had the authority to issue and renew insurance policies. The chancellor rendered a ' decree in favor of the complainant against the insurance company, ordering it to issue the policy prayed for in the bill, decreed that the amount due complainant under said policy was one thousand two hundred dollars, and credited the insurance company with the premium of thirty-six dollars. The bill was dismissed as to the defendants -Denison and Blankenship.

The first contention of the appellant is that the evidence was insufficient to show that the appellant company, or any agent authorized to act for it, made any agreement- to extend the insurance; that there was not a meeting of the minds of the insurer and the insured to consummate the agreement. The testimony in the record shows that Mr. Eeid, with whom appellee had his telephonic conversation,' was authorized to re-now policies of insurance and to write them and sign the name of the Jasper County Insurance Agency. This testimony shows that he agreed to this renewal. The testimony of Mr. Hinton is also to the effect that Mr. Blankenship, one of the partners of this insurance agency, told him that this insurance was in effect. That there can be an oral contract to renew insurance is unquestioned.- In this case the contract of renewal agreed upon was that the new policy to be issued would be for the same term of years as the old pplicy, viz. three years, would be for the same amount, viz. one thousand dollars on the dwelling and five hundred dollars on the furniture, and would be for the same premium, viz. thirty-six dollars. There was nothing said about any change in the terms of the policy or the amount of premium to be paid therefor in the contract of agreement of renewal. This being true, it follows that the terms of the new policy were to be the same as those contained in the old policy. This is demonstrated by the below cited authorities:

“Here there was simply an agreement to renew an existing policy. The agreement would naturally mean that, a similar policy was to be issued on May 6th on the same tobacco, insuring lit for six hundred dollars for three months from that time.” Georgia Home Ins. Co. v. Kelley, 113 S. W. (Ky.) 882.

“As to the objection that nothing was said as to the terms and conditions of renewal, we hold that, where there is an agreement for renewal of a policy, the insured is justified in assuming that the premium, and all the terms and conditions of the renewal, will be the same as those of the original, unless he has notice of some proposed change. This would hardly seem to need authority.” Mallette v. British American Ins. Co., 91 Md. 471, 46 Atl. 1005.

“According to his statement, the agreement then was to ‘renew the insurance'for one year.’ His last insurance, had through this agent, was with the defendant company, and, by force of the term ‘renew,’ the company, as well as the property to be insured, and the terms of the policy, was sufficiently designated and agreed upon.” Abel v. Phoenix Ins. Co., 47 App. Div. 81, 62 N. Y. Supp. 218.

“Where, however, there exists a contract of insurance, . . . and there is an agreement between the parties to renew the policy, and no change is suggested or agreed upon, it will be implied that the renewal contract included and adopts all the provisions of the existing contract of insurance. Such a Contract is complete in all respects, and upon failure to comply with the agreement, the party offending may be compelled, by bill in equity, specifically to perform the agreement,, or held liable in a court of law for damage resulting from a breach of the agreement (Mobile Marine Dock and Mut. Ins. Co. v. McMillan & Sons, 31 Ala. 711; Home Ins. Co. v. Adler, 71 Ala. 516; Ala. Gold Life Ins. Co. v. Mayes, 61 Ala. 163, 9 How. 405; Lancaster Mills v. Merchants’ Ins. Co., 89 Tenn. 1, 14 S. W. 317, 24 Am. St. Rep. 586), . . . and where the agreement was to renew an existing contract of insurance, it was proper and necessary to admit in evidence such existing contract of insurance.” Commercial Ins. Co. v. Morris, 105 Ala. 498, 18 So. 34.

‘ ‘ The very request to renew a policy implies that the new policy shall be exactly like and similar to the old.” Mallette v. Ins. Co., supra.

It has been decided by this court that a court of equity will compel the issuance and delivery of an insurance policy after loss where there has been a valid agreement for-the issuance of same before loss:

“It is well settled that a court of equity will compel the issuance and delivery of an insurance policy after a loss, where there has been a, valid agreement for one before the loss, and will enforce payment of it, as if made in advance. . . . This will be done where the contract was by parol, and even where the charter of the insurance company requires all policies to be in writing.” Franklin Fire Ins. Co. v. Taylor, 52 Miss. 441.

The appellant also contends that there has- been a change in one of the partners of the insurance agency since the issuance of the first policy, which is true. The testimony, however, shows that the agents of the company at the time they agreed to renew the same were fully informed as to the terms and conditions of the old policy. In fact, the agent who actually wrote the policy continued to be a member of the firm. It, therefore, follows that the insurance agency was fully advised as to the old policy when they agreed to a renewal of the same.

“Where plaintiff’s last insurance was had .with the defendant insurance company through the same agent, the word ‘renew,’ in an oral contract-with such agent to renew the insurance, sufficiently designates the company, as well as the. property to he insured, and the terms of the policy.” Abel v. Ins. Co., 47 App. Div. 81, 62 N. Y. Supp. 218.

This court has uniformly held that an agent who has authority to issue policies of fire insurance stands in the stead of the company, and that his acts and declarations with reference thereto are the acts and declarations of the company, and that the company is bound thereby.

“The .powers of insurance agents to hind their companies are varied hy the character of. the functions they •are employed to perform. . . . An . . . agent clothed with the authority to make contracts of insurance or to issue policies stands in the stead of the company to the assured. His acts and declarations in reference to such business are the acts and declarations of the company. The company is hound, not only by notice to such agent, hut hy anything said or done hy him in relation to the contract or risk, either before or after the contract is made.” Rivara v. Ins. Co., 62 Miss. 720.

“The naked inquiry, then, is, Could the agent of the insurer waive the condition of the contract requiring consent for additional insurance to he made in writing indorsed on the policy? Or, to put it otherwise, Is the insurer estopped from claiming a forfeiture hy the acts and conduct of its agents ? . . . They represented and Mood for the company. They received applications; they issued policies; they collected premiums; they received notice of other insurance,, and gave consent.thereto — in general, they did for the company whatever it could do in the matter of making and continuing contracts of insurance. The company, being an artificial creature, -could only act through human agencies, and what those agents did in this case, as indicated above, the company itself may be said to have done.” London etc., Ins. Co. v. Sheffy, 71 Miss. 919, 16 So. 307. See, also, Ins. Co. v. Wylie, 110 Miss. 681, 70 So. 835,

It is further contended by the appellant that before the renewal contract became valid or enforceable it was necessary for the insured to pay the premium on said policy. , The record in the case shows that the appellee did not pay the premium on the first policy until after it had been issued several weeks. It also shows that the same insurance agency did not require that he pay the premium on the tornado insurance policy which he carried with this agency at the time of its issuance, but that his attention was called to the premium being due one day when he was in the bank, and that he paid the same in cash. The testimony further shows that the insurance agency kept books and charged premiums for insurance, and collected them whenever they so desired. By not demanding the premium when they agreed to renew the policy, and by the course of dealing between this agency and appellee, the right to demand the premium before the issuance of the policy was waived. The testimony in this case shows that the appellee did a banking business with the bank of which the members of the insurance agency were respectively president and cashier, and that the insurance matters were handled by the officers of the bank.

“The actual payment of the premium before the risk attaches is not necessary unless such payment is made a condition precedent by the terms of the contract. This is not ordinarily done in cases of marine and fire 'insurance, but is customary in cases of life insurance. . . . The premium may be paid to the company or its duly authorized agent. Presumably it is payable in cash, hut if credit is given, it is equally as effective as cash. If there is no provision making the payment of the premium a condition precedent, it seems that the agent who negotiated the insurance may give credit for the premiums. ” Elliott on Contracts, vol. 5, secs. 4133, 4134.

See, also, Post v. Aetna Ins. Co., 43 Barb. (N. Y.) 351; Hawthorn v. Alliance Co., 181 Ill. App. 88; Baldwin v. Phoenix Ins. Co., 107 Ky. 356, 54 S. W. 13, 92 Am. St. Rep. 362.

The telephonic conversation between the appellee and Mr. Reid was testified to by Mr. and Mrs. Cheek, who heard what appellee said in that conversation. This testimony was competent. In the late case of St. Paul Fire & Marine Ins. Co. v. McQuaid, 114 Miss. 430, 75 So. 257, this court said:

“As to the law touching conversations over telephones : We think the iaw is well settled that such conversations are admissible in evidence. The fact that the voice at the telephone is not identified does not render the conversation inadmissible. The weight to be given such evidence is largely, left to the jury, or to the chancellor, when the case is tried without a jury.”

Similar testimony has been held to be admissible by the great weight of authority in this country.

“A telephone conversation between the parties, and upon the subject-matter of the litigation, having been testified to by one of the parties, may also be testified to by a bystander, so far as he heard it.” Kent v. Cobb, 24 Colo. App. 264, 133 Pac. 424.

“The only question is whether a witness for the plaintiff properly was allowed to testify to what he heard the plaintiff say as a part of an alleged conversation with the defendant over the telephone, the plaintiff being in Boston and the defendant in Chelsea, and the witness being in the presence and hearing of the plaintiff. The witness had no personal knowledge with whom the plaintiff was talking, and did not hear anything that was alleged to have been .said by the defendant, and did not know that the defendant heard anything that the plaintiff said. ... We think that the evidence was properly admitted. . . . The evidence that was admitted cannot be regarded as hearsay evidence or declarations made by the plaintiff in his own interest, simply because the witness did not know of his own knowledge that the other party to the alleged conversation was the defendant, or that there was any other party, or that the defendant heard what was said.” McCarty v. Peach, 186 Mass. 67, 70 N. E. 1029, 1 Ann. Cas. 801.

The contract of renewal in this case became complete when Mr. Beid, who had authority to issue insurance and renew the same, agreed to renew this policy. The testimony of the complainant, which was believed by the chancellor, further shows that Mr. Blankenship, one of the partners in the insurance agency, knew of this renewal of Mr. Beid’s and acquiesced in it. It is therefore immaterial as to what conversation took place during the fire or at the bank, after the fire, when they were searching for this insurance policy. For this, reason we have not set out in detail this part of the testimony in the opinion.

The decree of the lower court is affirmed.

Affirmed.