Opinion
No. 39199.
April 19, 1954.
1. Evidence — copy of stenographer's transcript in former trial — competent — statutes.
In suit on automobile fire policy covering loss of truck by widow of insured, who died pending new trial, and whose testimony at first trial had been transcribed and certified by official court reporter before she lost her notes, which transcript was in possession of insurer, Court did not err in requiring insurer to permit a copy of transcript to be taken under applicable statute by widow for use in trial, and such transcript of husband's testimony given at first trial was competent. Sec. 1659, Code 1942.
2. Evidence — copy of transcript — competent when.
Testimony of a deceased witness, given under oath in a judicial proceeding between the same parties on same issue, is competent when the party against whom the testimony is offered had opportunity to cross-examine the witness on the former proceeding.
3. Insurance — automobile fire policy — anti-mortgage clause — waiver.
Anti-mortgage clause in automobile fire policy was waived when insured did not know of such provision in policy until after loss and insured's general agent, who had full authority to issue policies binding on insurer, inspected truck and asked no questions with reference to mortgage or deed of trust on truck, and no written application was required, or made, for insurance.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Monroe County; RAYMOND T. JARVIS, Judge.
Ramon L. Burgess, Tupelo; G.M. Holmes, E.W. Holmes, Jr., Aberdeen, for appellant.
I. The Court erred in granting the motion of the plaintiff for a new trial at the October, 1949, term of court and setting aside the judgment for the defendant which had theretofore been entered. Bacot v. Phenix Insurance Co., 96 Miss. 223, 50 So. 729; Columbian Fire Ins. Co. v. Lawrence, 7 L.Ed. 335; Groce v. Phoenix Ins. Co., 94 Miss. 201, 48 So. 298, 22 L.R.A. (N.S.) 732; Hamilton v. Insurance Co. (Mich.), 57 N.W. 735; Hartford Fire Ins. Co. v. McCain, 141 Miss. 394, 106 So. 529; Hubbard v. N.B. M. Ins. Co., 57 Mo. 1; Liberty Ins. Co. v. Boulden, 11 So. 771; Liverpool London Globe Ins. Co. v. Cochran, 77 Miss. 348, 26 So. 932; National Union Fire Ins. Co. v. Provine, 148 Miss. 659, 114 So. 730; Pelican Ins. Co. v. Smith, 9 So. 327; Rosenstock v. Miss. Home Ins. Co., 82 Miss. 674, 35 So. 309; Royal Ins. Co. v. Shirley, 142 Miss. 249, 106 So. 884, 885, 886; Strickland v. Kirk, 51 Miss. 795; Waller v. North Assur. Co., 19 N.W. 865; 28 Cent. Digest, Sec. 602 p. 1223; Ostander on Fire Insurance (2d ed.), Sec. 72 p. 232.
II. The Court erred in overruling the motion of the defendant made at the October, 1952, term of circuit court to dismiss this suit at the cost of the plaintiffs.
III. The Court erred in granting at the October, 1952, term of the Court the application of the plaintiffs and ordering the defendant's attorney, Ramon L. Burgess, to produce and deliver to plaintiff's attorney the certified copy of the stenographer's notes taken by the official court stenographer at the October, 1949, term of court.
IV. The Court erred in overruling at the conclusion of the plaintiff's testimony at the trial of this cause at the March, 1953, term of court the motion of the defendant to exclude all the evidence offered by the plaintiffs and to instruct the jury to find for the defendant.
V. The Court erred in overruling at the conclusion of all the testimony in this cause at the March, 1953, term of court the motion of the defendant for the Court to instruct the jury to find for the defendant.
VI. The Court erred in sustaining the motion of the plaintiffs for the Court to instruct the jury to find for the plaintiffs and fix the amount of the plaintiff's damages.
VII. The Court erred in giving each of the instructions to the jury requested by the plaintiffs.
VIII. The verdict of the jury was contrary to the law and manifestly against the evidence in the case.
IX. There was no proper evidence introduced by the plaintiffs as to the true market value of the truck and equipment thereon at the time said truck and equipment was damaged by fire, and the evidence offered by the plaintiffs as to the true market value of the truck and equipment at the time of the fire was not competent and was objected to but was allowed by the Court to go to the jury.
X. The jury failed to take into consideration the depreciation in the value of the truck and equipment thereon from the date of its purchase up to the date it was damaged by fire and because there was no proof of the salvage value.
XI. The verdict of the jury for $2,250 damage to the truck and the equipment was excessive and not supported by the evidence. Thomas F. Paine, Aberdeen, for appellees.
I. It is admitted that the agent of appellant who procured this insurance policy was the general agent of the appellant, and under Section 5706 of the Mississippi Code of 1942 and many other authorities decided in our State the general agent of the Company, the appellant, had the authority to waive any or all provisions of the insurance policy, and since the insurance agent made no request of J.K. Gerlach as to whether the property was encumbered by a deed of trust or not and since J.K. Gerlach did not misrepresent any facts concerning the insurance policy or the title to the automobile truck there was no fraud committed whatsoever by Mr. Gerlach, and these conditions were waived by the general agent of the appellant. Camden Fire Ins. Assn. v. Koch, 216 Miss. 576, 63 So.2d 103; Fidelity Cas. Co. of N.Y. v. Cross, 131 Miss. 633, 95 So. 631; Georgia Home Ins. Co. v. Holmes, 75 Miss. 390, 23 So. 183; Home Ins. Co. v. Thornhill, 165 Miss. 787, 144 So. 861; Liverpool London Globe Ins. Co. v. Delaney, 190 Miss. 404, 200 So. 240; Rivara v. Queen's Ins. Co., 62 Miss. 728; Scottish Union Natl. Ins. Co. v. Wylie, 110 Miss. 681, 70 So. 835.
II. A general agent of an insurance company with authority to deliver policies and receive payment of premiums has power to waive the payment of premiums although the policy contains a clause to the contrary. Saucier v. Life Cas. Ins. Co. of Tenn., 181 Miss. 887, 179 So. 851.
III. Where an insurance contract is otherwise complete, unconditional delivery by a general agent operates by waiver of prepayment of premium notwithstanding express provisions in the policy that the insurer shall not be liable until the premium is actually paid. Scottish Union Natl. Ins. Co. v. Warren Gee Lbr. Co., 118 Miss. 740, 80 So. 9.
IV. It is not essential that the premiums on the policies be paid or that the policies be actually delivered to the insured before the contract becomes effective. Equitable Fire Ins. Co. v. Alexander (Miss.), 12 So. 25; New York Life Ins. Co. v. McIntosh, 86 Miss. 236, 38 So. 775; Scottish Union Natl. Ins. Co. v. Wylie, supra.
On December 1, 1948, appellant issued to J.K. Gerlach a policy insuring him against loss or damage by fire to an automobile truck to the extent of its actual cash value. The truck was totally destroyed by fire on December 30, 1948, and, the company having denied liability for the loss, Mr. Gerlach instituted suit for recovery on the policy. At the first trial of the case the lower court granted a peremptory instruction in favor of the defendant and judgment was entered thereon on October 26, 1949. During that term of court the plaintiff filed a motion for a new trial which was sustained and the said judgment was set aside. The case was continued for several terms and Mr. Gerlach died before it came on for trial again. It was revived thereafter and was tried again with the result that the plaintiff obtained a judgment for $2,250.00 from which this appeal is prosecuted.
(Hn 1) Before the last trial the plaintiff filed a motion wherein it was shown that J.K. Gerlach had testified in the first trial and that his testimony was taken down in shorthand by the official court reporter and that she had lost or misplaced her notes, but that before losing them she had transcribed Mr. Gerlach's testimony and had certified to the correctness thereof and that this transcript was in possession of counsel for the insurance company; wherefore it was requested that plaintiff's counsel be permitted to take a copy thereof for use upon the last trial in accordance with the provisions of Section 1659, Code of 1942. This motion was sustained and upon the last trial the plaintiff offered in evidence the certified transcript of Mr. Gerlach's testimony. Appellant contends that the lower court erred in requiring production of the transcript and in admitting the same in evidence. Requiring its production was fully authorized by the statute aforesaid, and it was competent as evidence under the overwhelming weight of authority and particularly under the following Mississippi cases: Lipscomb v. State, 76 Miss. 223, 254, 25 So. 158; Owens v. State, 63 Miss. 450, 452; Strickland v. Hudson, 55 Miss. 235, 241. (Hn 2) The rule is that the testimony of a deceased witness, given under oath in a judicial proceeding between the same parties on the same issue, is competent when the party against whom the testimony is offered had opportunity to cross-examine the witness on the former proceeding.
(Hn 3) It is also contended that the appellant was entitled to a directed verdict because the policy contained a clause which provides "This policy does not apply * * * under any of the coverages, while the automobile is subject to any * * * mortgage or other encumbrance not specifically declared and described in this policy." Mr. Gerlach testified that he did not know that the policy contained this provision. There was no mortgage declared and described in the policy and it is undisputed that the truck in question was encumbered by a deed of trust to secure an indebtedness to J.B. Lambert in the amount of $1,509.00; the deed of trust also included a considerable amount of other property. There was a balance due on the truck when it was bought by Mr. Gerlach but that balance had been fully paid before issuance of the policy. Mr. Gerlach testified positively that appellant's agent came to his farm and inspected the truck before the policy was issued and that no question was asked with reference to a mortgage or deed of trust on it, and no written application was made for the insurance. Appellant's agent testified that he went to appellant's farm and saw the truck and obtained the motor number; he said that he took the motor number from a bill of sale which showed a balance due and he asked Gerlach if the truck was paid for and that Gerlach replied that it was. The agent did not testify that he asked whether there was a deed of trust on the truck. He admitted that he is a general agent with full authority to issue policies binding upon appellant and that he did not take any written application for the policy.
In the case of Georgia Home Insurance Co. v. Holmes, 75 Miss. 390, 402, 23 So. 183, this Court said: "This is a case, then, in which no application — no formal application — was made, because the agent held it unnecessary, inasmuch as he knew about the condition of the property, and a case in which appellee did not know there was any anti-mortgage clause contained in the policy until after the loss, and the question is, whether the company shall now be permitted to repudiate its contract made, not upon any misrepresentations, or even representations, of the insured, but upon its own knowledge of the condition of the property. If this policy was issued upon the knowledge of the company as to the condition of the property, and after refusal to furnish the usual blank application, whereby the insured would have apprised the insurer of the true condition of the property, and not upon any representation of the insured, then the anti-mortgage clause must be held to have been waived. Any other view would involve the holding by us of this proposition: that the insurance company, waiving any application by the person desiring insurance and issuing a policy upon its own knowledge of the condition of the property, may receive the premiums paid for the indemnity, and defeat a recovery for a loss sustained by inserting in the policy a provision invalidating the contract from the moment it was signed and delivered, thus inducing the insured to rest upon a contract which the company never intended to carry out. This cannot be sound law."
The Holmes case, supra, was cited with approval in the more recent case of Scottish Union National Ins. Co. v. Wylie, 110 Miss. 681, 70 So. 835, where we said: "The testimony in the case shows that Tomlinson, as the agent of appellant company, had the right to issue policies, collect the premiums therefor, cancel policies, and, in short, was their agent for all purposes connected with the insurance business in the City of Gulfport. The appellant company held him out as their agent, and they are bound by all his acts within the real and apparent scope of his authority. This being true, by his not asking for any information from the insured as to the condition of the policy or the condition of the property, he waived the benefits of the noninsurance and nonmortgage clauses existing in said policy at that time; or rather he had no right to insert these two clauses in said policy, because they were not a part of the contract of insurance entered into between himself and the appellee — that contract simply being that he was to issue a policy on this property for $750.00 regardless of any mortgages or other insurance."
And in Liverpool London Globe Ins. Co. v. Delaney, 190 Miss. 404, 411-412, 200 So. 440, we said: "If Delaney advised Stewart of the existence of this other insurance policy on the house here insured, which was for the determination of the jury, the stipulation in the policy that it would be void if the house covered by it was or would become covered by another insurance policy was waived, by his issuing the policy notwithstanding stipulations to the contrary therein. This Court has many times held with the weight of authority elsewhere, — that a local agent of an insurance company who is furnished by it with blank policies to be filled up, countersigned and issued by him has all the powers of a general agent of a company when issuing such policies and may waive any of their provisions."
See also Martin v. Motors Insurance Corp., 68 So.2d 869, not yet reported in the bound volume of Mississippi Reports.
We have carefully considered the other contentions made by appellant and do not think they are sufficiently serious to warrant discussion, and the judgment of the lower court will accordingly be affirmed.
Affirmed.
Lee, Kyle, Arrington and Gillespie, JJ., concur.