Opinion
No. 41659.
January 23, 1961.
1. Equity — reopening case — denial of request to reopen after judgment not an abuse of discretion.
Denial of request to reopen case after judgment was not an abuse of discretion where term of Chancellor acting upon request was due to expire two and one-half months later, where movant initially failed to show what he intended to prove, and where offer of proof, when finally made, indicated only cumulative testimony by husband of witness who had already testified and whose testimony was undisputed.
2. Insurance — fire policy — failure to obtain vacancy permit prior to fire.
Insurer was not liable under, and was not estopped from relying on, fire policy which provided for nonliability of insurer while building was vacant or unoccupied beyond a period of 60 consecutive days, where backdated application for vacancy permit, executed after fire had occurred, was rejected by state manager of insurer, even though insured had paid to local insurance agency the vacancy permit premium, which had not been refunded.
Headnotes as approved by McGehee, C.J.
APPEAL from the Chancery Court of Hinds County; A.F. SUMMER, Chancellor.
Cox Dunn, Jackson, for appellant.
I. The Court erred in refusing to reopen and call the witness Combs as a witness of the court since he attended court under a subpoena by the defendant and was not called to testify; and erred in overruling appellant's motion to reopen the case and permit the witness Combs to testify as appellant's witness to show that the property was neither vacant nor unoccupied on June 7, 1958, when the house was totally destroyed by fire. American Hoist Derrick Co. v. Lynn, 167 Miss. 93, 148 So. 351; Beard v. Green, 51 Miss. 856; French v. Canton, A. N.R. Co., 74 Miss. 542, 21 So. 299; Meacham v. Moore, 59 Miss. 561; Moore v. Sykes' Estate, 167 Miss. 212, 149 So. 789; Sec. 5183, Code 1930; Griffith's Mississippi Chancery Practice, Secs. 578, 595, 596.
II. The Court erred in admitting in evidence over appellant's objection and consequently in considering in arriving at its decree in this case the amount which appellant received for the minerals, or mineral leases on the land, for the timber and for the ultimate sale of the property, all showing that appellant made a substantial profit; but such evidence was improperly treated and considered by the Court as having any evidentiary value to the issues in this case. Banks v. Banks, 118 Miss. 783, 79 So. 841.
III. The Court erred in overruling appellant's objection to the introduction by appellee of the non-waiver agreement introduced for the purpose of disparaging appellant's vacancy and occupancy permit; and erred in consequently considering that such non-waiver agreement was designed or intended to prevent or affect a voluntary waiver by the company of such vacancy and occupancy provision in the policy in suit. 45 C.J.S., Sec. 1043 p. 1268.
IV. The Court erred in refusing to reopen the case and allow the witness Barksdale to introduce in evidence Form No. 79 and Form No. 148 of the Mississippi State Rating Bureau to show the approved form of waiver by the company of any alleged vacancy or alleged unoccupancy of the property under the circumstances by reason of the fact that Johnny Combs was caretaker of the house and kept the doors and windows of this insured house locked at all times; and erred in refusing to permit Barksdale to testify that he could and would have issued a caretaker's unoccupancy permit on Form 148 to appellant simply upon request at any time without any charge therefor.
V. The decree of the trial court for the appellee is contrary to the overwhelming weight of the evidence and is not supported by any substantial evidence in this record and the trial court erred in not awarding the appellant a decree for $2,500 plus 6% interest thereon from June 7, 1958 in response to the undisputed evidence and testimony in this record.
A. On July 11, 1958, appellant paid the premium for a vacancy permit and that premium was promptly paid to appellee by the insurance agency for such June business, and in spite of appellee's refusal to approve the back-dating of such permit, it retained said premium in its hands with full knowledge thereasto until April 27, 1959, and thereby conclusively and irrevocably gave its implied consent to and approval of said vacancy permit. Fanning v. C.I.T. Corp., 187 Miss. 45, 192 So. 41; Mechanics' Traders' Ins. Co. v. Smith, 79 Miss. 142, 30 So. 632; New York Life Ins. Co. v. Odom, 100 Miss. 210, 56 So. 379; Phoenix Ins. Co. v. Bowdre, 67 Miss. 620, 7 So. 596; United States F. G. Co. v. Yost, 183 Miss. 65, 183 So. 260; 17 C.J.S., Secs. 4, 6 pp. 318, 322.
B. The acts of the insurer in accepting and retaining said premium with full knowledge of all of the facts constituted an effectual implied waiver of said conditions in its policy of insurance. Mechanics' Traders' Ins. Co. v. Smith, supra; Stonewall Life Ins. Co. v. Cooke, 165 Miss. 619, 144 So. 217; 45 C.J.S., Sec. 704 pp. 671-3.
C. Appellee's risk was not increased by the state of occupancy of this non-vacant dwelling and appellant was entitled to a decree on this policy under its express coverage under the undisputed facts in this case. Hall's Aero Supply Co. v. Underwriters at Lloyds, London, 274 F.2d 527; Hartford Acc. Indem. Co. v. Shaw, 273 F.2d 133; Martin v. Motors Ins. Co., 219 Miss. 473, 68 So.2d 869.
Watkins Eager, Jackson, for appellee.
I. The property was unquestionably unoccupied in spite of the fact that Johnny and Easter Combs, negroes, lived in another negro tenant house on the same farm and were up and around the big house almost every day watering their stock and farming the field out in front and tried unsuccessfully to keep the big house locked and the windows closed, but were actually living in their own house. This did not keep the property from being unoccupied. Home Ins. Co. of N.Y. v. Scales, 71 Miss. 975, 15 So. 134; Lester v. Mississippi Home Ins. Co. (Miss.), 19 So. 99; Western Assurance Co. v. McPike, 62 Miss. 740.
II. There was nothing said in the telephone conversation with Mrs. Wallace more than a year prior to the loss that would or should have led the complainant to believe that it was not necessary to obtain a vacancy permit on this type of property. American Life Ins. Co. v. Barnett (Miss.), 51 So.2d 227; Truly v. Mutual Life Ins. Co., 108 Miss. 453, 66 So. 970; World Fire Marine Ins. Co. v. King, 187 Miss. 699, 191 So. 665.
III. The suspension of coverage at the time of the fire and the non-liability of appellee to appellant for the loss was not affected by any acts of Barksdale or Sours after the loss.
A. There was no implied or inferred modification of the insurance contract after the loss and no "implied consent to and approval of said vacancy permit". American Mutual Liability Ins. Co. v. McDiarmid (Ala.), 99 So. 849; Hopkins v. Phoenix Fire (Ky.), 254 S.W. 1041; Municipal Waterworks v. City of Ft. Smith, 216 Fed. 431; Scottish Union Nat. Ins. Co. v. Bailey, 114 Miss. 732, 75 So. 593; Scottish Union Nat. Ins. Co. v. Warren Gee Lumber Co., 118 Miss. 740, 80 So. 9; Summers v. Ralston Purina Co. (Ala.), 69 So.2d 858; Union Marine v. Holmes (Ala.), 31 So.2d 303; 17 C.J.S., Sec. 4 p. 318; 6 Couch on Insurance, Sec. 1331.
B. No new liability can be created by waiver and therefore waiver is not involved here. Carnes v. Employers' Liability, 101 F.2d 739; Commercial Standard Ins. Co. v. Robertson, 159 F.2d 405; Maryland Casualty Co. v. Adams, 159 Miss. 88, 131 So. 544; Massie v. Washington Fidelity Nat. Ins. Co., 153 Miss. 433, 121 So. 125; Mechanics' Traders' Ins. Co. v. Smith, 79 Miss. 142, 30 So. 632; Scottish Union Nat. Ins. Co. v. Bailey, supra; Stonewall Life Ins. Co. v. Cooke, 165 Miss. 619, 144 So. 217; Supreme Lodge K.P. v. Quinn, 78 Miss. 525, 29 So. 826; Union Marine v. Holmes (Ala.), supra.
C. Nothing done by Sours could be held to be a waiver of the lack of coverage during vacancy. American Life Ins. Co. v. Barnett (Miss.), 51 So.2d 227; Gault v. Branton, 222 Miss. 111, 75 So.2d 439; Liverpool London etc. Ins. Co. v. Dickinson (Ala.), 5 So.2d 90; New York Life Ins. Co. v. O'Dom, 100 Miss. 219, 56 So. 379; Rosenthal v. State Bar Committee (Conn.), 165 A. 211, 87 A.L.R. 991; St. Paul Mercury Indem. Co. v. Ritchie, 190 Miss. 8, 198 So. 741; Saucier v. Life Casualty Ins. Co. of Tenn., 189 Miss. 693, 198 So. 625; Supreme Lodge K.P. v. Quinn, supra.
D. Nothing done by Barksdale after the loss could be construed as a waiver of any litigation on the coverage contained in the policy. American Nat. Ins. Co. v. Walters, 230 Miss. 616, 93 So.2d 616; Crease v. Liberty Industrial Life Ins. Co. (La.), 151 So. 89; Dreeben v. Mutual Life, 29 F.2d 963; John Hancock Mutual Life Ins. Co. v. Hefner, 35 A.2d 485; Kash v. Sun Life Assur. Co. of Canada, 14 A.2d 214; Parsons v. Federal Realty Corp. (Fla.), 143 So. 912; Summers v. Jefferson Standard Life Ins. Co., 142 S.W.2d 589; 44 C.J.S. 814; 45 C.J.S., Sec. 717 p. 700 et seq.
E. Before appellant tendered the check for the requested back-dated vacancy permit, and on June 23, 1958, appellant and appellee has entered into a non-waiver agreement. Anderson v. American Foreign Ins. Co., 227 Miss. 324, 86 So.2d 303; Bankers Fire Marine v. Draiper (Ala.), 7 So.2d 299.
IV. There was as a matter of law a causal connection between the vacancy of the insured property and the fire loss. Billups Petroleum Co. v. Entrekin, 209 Miss. 302, 46 So.2d 781; F.W. Woolworth Co. v. Haynie, 176 Miss. 703, 170 So. 150; Harris v. Pounds, 185 Miss. 688, 187 So. 891; Lester v. Mississippi Home Ins. Co. (Miss.), 19 So. 99; McGuff v. State (Ala.), 7 So. 35; Merchants' Wharf-Boat Assn. v. Smith (Miss.), 3 So. 249; Terwilligen v. Union Fire (La.), 185 So. 43; Tribette v. Illinois Cent. R. Co., 71 Miss. 212, 13 So. 899; Western Assur. Co. v. McPike, 62 Miss. 740.
V. The Court below did not abuse its discretion in denying appellant's motion to reopen, filed over three months after the final submission of the case, for the purpose of developing a new theory from that on which the case was tried, particularly where the tendered additional evidence was merely cumulative and would have still left undisputed the fact that the property was unoccupied at the time of the fire. Allman v. Gulf S.I.R. Co., 149 Miss. 489, 115 So. 594; Beard v. Green, 51 Miss. 856; Cohn v. Pearl River Lumber Co., 80 Miss. 649, 32 So. 292; French v. Canton, A. N.R. Co., 74 Miss. 542, 21 So. 299; Meacham v. Moore, 59 Miss. 561; 30 C.J.S., Equity, p. 885; Griffith's Mississippi Chancery Practice, Secs. 41, 595.
VI. The Court did not err in its exercise of discretion in allowing introduction of evidence on cross-examination of appellant as to his reasons for the purchase of and the use made of the property on which the house which was burned was located. There is a wide latitude in the introduction of evidence on cross-examination, all within the discretion of the trial judge. Banks v. Banks, 118 Miss. 783, 79 So. 841; Buckley v. State, 130 Miss. 492, 94 So. 456; Chenault v. State, 154 Miss. 21, 122 So. 98; Jenkins v. Jenkins, 232 Miss. 879, 100 So.2d 789; Jones v. Jones, 222 Miss. 387, 76 So.2d 201; Lauderdale County v. Kittel, 229 Fed. 593; Prewitt v. State, 156 Miss. 731, 126 So. 824; 98 C.J.S., Secs. 134 et seq. pp. 148-9.
VII. Vacancy Permit Forms No. 79 and No. 148 are totally irrelevant to any issue in this case and Form No. 148 did not automatically become part of the contract under the "liberalization" clause thereof. Adams v. Board of Suprs. Union County, 177 Miss. 403, 170 So. 684; Adams v. City of Clarksdale, 95 Miss. 88, 48 So. 242; A.H. George Co. v. Louisville N.R. Co., 88 Miss. 306, 40 So. 486; Allison v. Allison, 203 Miss. 20, 33 So.2d 619; Anderson v. Leland, 48 Miss. 253; Anderson v. Maxwell, 94 Miss. 138, 48 So. 227; Board of Trustees Kingston Consol. School Dist. v. Forman, 233 Miss. 42, 101 So.2d 102; Boutwell v. Merritt, 232 Miss. 811, 100 So.2d 604; Estes v. Memphis C.R. Co., 152 Miss. 814, 119 So. 199; Germania Life Ins. Co. v. Bouldin, 100 Miss. 660, 56 So. 609; Gulf, M. N.R. Co. v. Madden, 190 Miss. 374, 200 So. 119; Hassie Hunt Trust v. Proctor, 215 Miss. 84, 60 So.2d 551; Huston v. King, 119 Miss. 347, 80 So. 779; Kellogg v. Schaueble, 273 Fed. 1012; Kennedy v. Sanders, 90 Miss. 524, 43 So. 913; Lee v. Newman, 55 Miss. 365; Leithauser v. Hartford Fire Ins. Co., 78 F.2d 320; Mack v. Pacific Mutual (Minn.), 208 N.W. 410; Metropolitan Life Ins. Co. v. Marshall (Ga.), 16 S.E.2d 33; Mississippi Valley Trust Co. v. Brewer, 157 Miss. 890, 128 So. 83; Mitchell v. Finley, 161 Miss. 527, 137 So. 330; Noxubee County v. Long, 141 Miss. 72, 106 So. 83; Pacific Life v. Arnold (Ky.), 90 S.W.2d 44; Rutland v. McIntosh, 121 Miss. 437, 83 So. 635; Summer Stores of Miss. v. Little, 187 Miss. 310, 192 So. 857; United States Cas. Co. v. Malone, 126 Miss. 288, 88 So. 709; Vicksburg Mfg. Supply Co. v. J.H. Jaffray Const. Co., 94 Miss. 282, 49 So. 116; 32 C.J.S., Evidence, p. 87; Griffith's Mississippi Chancery Practice, Sec. 564.
This suit is on a fire insurance policy issued by the Old Colony Insurance Company in favor of John Hart Asher in the sum of $2,500 on a certain dwelling house located about four miles east of Russum, Mississippi, in Jefferson County. The house was also insured by the Birmingham Fire Insurance Company in the same amount on the same day, February 16, 1958. The house was destroyed by fire from some unknown cause on June 6, 1958.
The policy provided for nonliability of the insurer "while the described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of sixty consecutive days". The house had been vacant or unoccupied for more than sixty days at the time of the fire, according to the effect of the decision of the chancellor. The suit of the appellant against Birmingham Fire Insurance Company was filed in the circuit court and tried there subsequent to the trial of the instant case in the chancery court. Both cases were decided in favor of the respective insurance companies, and the judgment appealed from in the case of John Hart Asher v. Birmingham Fire Insurance Company, Cause No. 41,627, was affirmed by this Court on Monday, January 16, 1961. The decision in that case is controlling here in all essential particulars, except that in the instant case on October 16, 1959, the chancery court was requested to reopen the case and permit one witness Johnny Combs to testify as to certain personal property that he had kept stored in the house and that he and his wife had spent at least two nights there during the sixty day period immediately prior to the fire; that he was looking after the property as a caretaker during the sixty day period; and that he was entitled to introduce certain documents which permitted the use and care of the property by a caretaker.
(Hn 1) Upon the making of the motion by the appellant to be allowed to reopen the case for the purposes aforesaid, the chancellor overruled the motion, and thereafter, for the first time, on November 5, 1959, the appellant filed a motion in which there was set forth what he proposed to prove by the said witness Johnny Combs. But at the time the motion to reopen the case was overruled, the appellant did not dictate into the record or otherwise disclose just what he proposed to prove by this witness. Except for this fact, the chancellor would have been justified in allowing the case to be reopened for the purposes aforesaid. But we are of the opinion that since the term of the chancellor was to expire on December 31, 1959, he did not abuse his discretion in declining to reopen the case for further proof on October 16, 1959. And especially in view of the fact that it appears from the record that the testimony of this witness would have been cumulative to that which the chancellor had already heard from the wife of the witness, who would naturally have known the same facts in regard to their alleged occupancy of the house within the 60 day period involved. Her testimony was undisputed and therefore did not need to be supplemented. We do not think that her testimony or the testimony later set forth in the motion filed on November 5, 1959, proposed to be made by her husband would have sustained the right of the appellant to a recovery in this case under all the facts and circumstances.
It is stated in the brief of the appellee, and the statement is unchallenged, that the case in the circuit court against the Birmingham Fire Insurance Company was tried subsequently to the case at bar in the chancery court, and it does not appear that this witness was used by the appellant on the trial in the circuit court.
Sometime after the house was destroyed by fire, an application for a vacancy permit was prepared and was backdated to a date prior to the fire, but the said application was not signed by the appellant and was never delivered to the appellee. When this backdated application and permit was submitted to the Mississippi manager of the appellant insurance company he declined to recognize the same, and the appellant was advised that the same was rejected and that the appellee intended to stand on the policy as it existed on the date of the fire.
The premium for the backdated vacancy permit in the sum of $8.75 was paid by the insured, and it was shown in a running account of the insured or of the local insurance agency, Robert Barksdale Company, Inc., with the appellee, and was never refunded or tendered back to the insured until the filing of the appellee's answer to the suit a few months later, but as stated in the opinion of this Court rendered in the case of John Hart Asher v. Birmingham Fire Insurance Company on January 16, 1961, the circumstances in reference to the failure to refund this premium earlier "was fully explained".
No vacancy permit was ever requested or issued prior to the fire. Nor was it shown that the appellee Old Colony Insurance Company knew that the attempt to obtain the vacancy permit was made until after the fire.
(Hn 2) Since the property was already destroyed by fire at the time the attempt was made to get the vacancy permit, there was nothing to insure at that time. Property which has already been destroyed by fire can not be covered by a fire insurance policy.
In 6 Couch on Insurance, Section 1331, it is stated: "If property has been totally lost, and this is known by the parties, there is nothing to insure, no event to be indemnified against, no unknown event upon which to base the contract, so that in such case there can be no lawful or valid insurance."
In Hopkins v. Phoenix Fire Ins. Co., (Ky) 254 S.W. 1041, it was held: "A fire insurance agent has no authority to bind his principal by attempting to insure property already destroyed. * * *
"It seems to be a well-settled legal principle that an insurance agent, though he have authority to sign and deliver policies, cannot bind his principal in an attempt to assume a risk which has already become non-existent. * * *
"The very nature of an insurance contract is to indemnify the insurer against risk, and when there is no longer any risk, and the fact is known to both parties, the very purpose of the contract is destroyed, and it might be that such a contract would be against public policy."
In the case of Scottish Union National Ins. Co. v. Warren-Gee Lbr. Co., 118 Miss. 740, 80 So. 9, it was held that a contract of fire insurance must have been consummated before the fire occurred.
It appears that a year or more before this policy was written the appellant had a telephone conversation with a Mrs. Wallace of the Robert Barksdale Company, Inc., wherein he inquired of her as to the necessity of a vacancy permit on some Jackson property, and was advised that such a permit was not required. But the chancellor held that he was unable to see how the appellant could have been misled by that conversation into believing that a vacancy permit would not be needed under a policy on property located in the rural area where the property in question was located. The testimony of Mr. Barksdale as to what he thought the insured may have understood from his conversation with Mrs. Wallace was objected to and in our opinion was inadmissible. We do not think that what Mrs. Wallace may have said to the appellant could be held to constitute a waiver of the necessity for a vacancy permit on the property in question. Nor do we think that the retention of the $8.75 premium, under the facts and circumstances explained, could have estopped the appellee from relying upon the terms of the policy as it existed at the time of the fire.
As hereinbefore stated, we think that the opinion in the case of John Hart Asher v. Birmingham Fire Insurance Company, rendered on January 16, 1961, fully controls the instant case in all of its material aspects, unless there was error in overruling the motion to be allowed to reopen the case on October 16, 1959, and, as already stated, we do not think that the chancellor abused his discretion in that particular.
The judgment appealed from must therefore be affirmed.
Affirmed.
Lee, Kyle, Gillespie and Rodgers, JJ., concur.