Opinion
No. 39592.
April 4, 1955.
1. Insurance — prohibition against other insurance — violation of policy provision — forfeited policy benefits.
Where insurance policy contained prohibition against other insurance unless total insurance, including that amount for which policy was issued, was listed in spaces provided, and insured did not inform insurer of fact that she had taken out other insurance, failure of insured to obtain approval or consent of insurer, resulted in forfeiture of benefits under policy.
Headnote as approved by Lee, J.
APPEAL from the Circuit Court of Warren County; R.B. ANDERSON, Judge.
Teller Biedenharn, Vicksburg, for appellant.
I. The standard policies here sued upon by their very terms could not be forfeited or voided by appellees unless the insured appellant had been guilty of concealment, misrepresentation or fraud; and that, since there was no such concealment, misrepresentation or fraud by or on behalf of appellant, the mere prohibition in the endorsement against other insurance did not legally void or forfeit these policies, especially since the sum of the total insurance was shown by the undisputed proof to be far less than the value of the insured property. Buffalo Ins. Co. of N.Y. v. Borden, 211 Miss. 47, 50 So.2d 895; Liverpool London Globe Ins. Co. v. Delaney, 190 Miss. 404, 200 So. 440; National Union Fire Ins. Co. v. Provine, 148 Miss. 459, 114 So. 730; Palatine Ins. Co. v. Smith, McKinnon Son, 115 Miss. 324, 75 So. 564; Paramount Fire Ins. Co. v. Anderson, 211 Miss. 372, 51 So.2d 763.
II. Whether the foregoing proposition be decided or passed upon at all, and independent of the decision reached thereon, these appellees in this case waived their right to insist upon the prohibition in the endorsement on the policies against additional insurance; that such provision was inserted for the benefit of these insurers. When their agent neglected to take any application from appellant and also elected not to inquire of her before issuing the policies on April 24, 1950, and thereby deprived her of an opportunity to divulge the facts and to protect herself, these insurers are thereby deemed to have waived that provision through the act or omission of their own agent, and are now estopped to insist upon or assert the defense of over insurance. American Fire Ins. Co. v. First National Bank, 73 Miss. 469, 18 So. 931; Equitable Fire Ins. Co. v. Alexander (Miss.), 12 So. 25; Georgia Home Ins. Co. v. Holmes, 75 Miss. 390, 23 So. 183; Home Ins. Co. of N.Y. v. Thornhill, 165 Miss. 787, 144 So. 861; Liverpool London Globe Ins. Co. v. Sheffy, 71 Miss. 919, 16 So. 307; National Union Fire Ins. Co. v. Provine, supra; Scottish Union Natl. Ins. Co. v. Wylie, 110 Miss. 681, 70 So. 835; Western Assur. Co. of Toronto, Canada v. Phelps, 77 Miss. 625, 27 So. 745; Sec. 5706, Code 1942.
III. The appellees not only did not make a proper or adequate tender, but their defense that the policies which they issued were void from their very inception is not only legally untenable but against sound mores and public policy. Since appellant was charged the regular rate and actually paid the prescribed premium, it would be, we believe and humbly submit, unconscionable to hold that appellees never incurred any risk whatsoever when indeed this appellant, an average citizen, was guilty of no wrongful act or even the slightest representation (much less misrepresentation) inducing the issuance of the policies or fixing the terms thereof; and when the proof strongly indicates that appellees would have retained the entirety of the premiums paid, just as had been done over the years past, had not the unfortunate fire occurred. Aetna Ins. Co. v. Smith, McKinnon Son, 117 Miss. 327, 78 So. 289, L.R.A. 1918D, 1158; Buffalo Ins. Co. of N.Y. v. Borden, supra; Liverpool London Globe Ins. Co. v. Delaney, supra; Mayers v. German F. Ins. Co., 101 Neb. 855, 166 N.W. 247, L.R.A. 1918C, 341; National Union Fire Ins. Co. v. Provine, supra; New Orleans Ins. Assn. v. Holberg, 64 Miss. 51, 8 So. 175; 29 Am. Jur., Secs. 731, et seq., 862; Mississippi Digest, Key Nos. 288, 336, 504, et seq.
James D. Thames, Vicksburg, for appellees.
I. Plaintiff breached the additional insurance clause of the contracts of insurance with the defendants; and under the positive terms and provisions of the said contracts of insurance, the plaintiff cannot recover in this action. Aetna Ins. Co. of Hartford, Conn. v. Jeremiah, 187 F.2d 95; American Ins. Co. v. Crawford, 110 Miss. 493, 70 So. 579; Buffalo Ins. Co. of N.Y. v. Borden, 211 Miss. 47, 50 So.2d 895; Claxton v. Fidelity Guaranty Fire Corp., 179 Miss. 566, 175 So. 210; Graham v. American Eagle Fire Ins. Co., 182 F.2d 500; Interstate Fire Ins. Co. v. Nelson, 105 Miss. 437, 62 So. 425; National Union Fire Ins. Co. v. Provine, 148 Miss. 459, 114 So. 730; Palatine Ins. Co. v. Smith, McKinnon Son, 115 Miss. 324, 75 So. 564; Paramount Fire Ins. Co. v. Anderson, 211 Miss. 372, 51 So.2d 764; Provident Fire Ins. Co. v. Jeremiah, 187 F.2d 95; Scottish Union Natl. Ins. Co. v. Warren Gee Lumber Co., 118 Miss. 740, 80 So. 9.
II. The law requires anyone asserting a waiver on the part of another as a basis for the right to recover against that person to allege and prove the factual basis for that waiver. The question of waiver was not raised by the pleading in this case, was not raised in the County Court, nor in the Circuit Court, and is not presented to this Court for decision by this appeal. However, the record in the case conclusively shows that the appellees have not waived any of their rights and have not waived their right to assert the admitted breach of the additional insurance clause by the appellant as a bar to the right of appellant to recover in this case. Home Mut. Fire Ins. Co. v. Pittman, 111 Miss. 420, 71 So. 738; Insurance Co. of Penn. v. Fitzgerald, 164 Miss. 278, 144 So. 684; National Union Fire Ins. Co. v. Provine, supra; Palatine Ins. Co. v. Smith, McKinnon Son, supra.
III. The appellees have tendered to appellant the full amount of the premiums paid for the insurance contracts involved in this case.
(Hn 1) The two insurance policies here sued on were renewals, and contained a prohibition against other insurance "unless the total insurance, including this policy, is listed in the following spaces." None was listed. The policies were in the possession of the appellant, and she should have been fully aware of the prohibition. Yet, previous to their issuance, the appellant had taken out other insurance in the amount of $6,000.00, but neither she nor the agent from whom that purchase was made notified either the appellees or their agent. There was no proof whatever of a waiver of this provision. Consequently because of her failure to obtain the approval or consent of the appellees, she forfeited such benefits as might thereafter accrue under the two policies. Palatine Ins. Co. v. Smith, McKinnon Son, 115 Miss. 324, 75 So. 564; National Union Fire Ins. Co. v. Provine, 148 Miss. 659, 114 So. 730. See also Graham, et al. v. American Eagle Fire Ins. Co., 182 F.2d 500.
Both the county and circuit courts properly denied Mrs. Flowers' right to recover. Consequently the cause must be, and is, affirmed.
Affirmed.
McGehee, C.J., and Holmes, Arrington and Ethridge, JJ., concur.