Opinion
No. 36142.
June 10, 1946.
1. INSURANCE.
In action to recover value of automobile which was lost by theft and fire, under policy requiring that insured be the sole and unconditional owner of the automobile, whether substantial and beneficial ownership of automobile was vested solely in insured, rather than in his wife who had been named in memorandum of sale as the buyer of the automobile, was for jury.
2. INSURANCE.
In action against insurer to recover value of automobile which was lost by theft and fire, under policy requiring that insured be the sole and unconditional owner of the automobile, failure of insured and his wife to reply to insurer's letter calling their attention to fact that proof of loss disclosed that automobile was property of wife and that liability of insurer might be denied, was a circumstance for consideration of jury, but did not entitle insurer to a peremptory instruction.
3. APPEAL AND ERROR.
Cross-appellant could not complain on cross-appeal that jury follow the only instruction requested by him as to amount of verdict.
APPEAL from the circuit court of Coahoma county, HON. ED H. GREEN, Judge.
Brewer Sisson, of Clarksdale, for appellant.
Appellee, not being the sole and unconditional owner of the automobile, was not entitled to recover.
Automobile Ins. Co. v. Hicks, 145 Miss. 842, 111 So. 362; Bacot v. Phenix Ins. Co. of Brooklyn, 96 Miss. 223, 239, 50 So. 729; Graves v. Hamilton, 184 Miss. 239, 184 So. 56; Gulf, M. N.R. Co. v. Weldy, 193 Miss. 59, 8 So.2d 249; Hartford Fire Ins. Co. v. McCain, 141 Miss. 394, 106 So. 529; Home Ins. Co. v. Cavin, 162 Miss. 1, 137 So. 490; Home Mutual Fire Ins. Co. v. Pittman, 111 Miss. 420, 71 So. 739; Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 426; Liverpool London Globe Ins. Co. v. Cochran, 77 Miss. 348, 26 So. 932, 78 Am. St. Rep. 524; Liverpool London Globe Ins. Co. v. Fuston, 179 Miss. 809, 176 So. 913; Phoenix Ins. Co. v. Bowdre, 67 Miss. 620, 7 So. 596; Rosenstock v. Mississippi Home Ins. Co., 82 Miss. 674, 35 So. 309; Travelers' Fire Ins. Co. v. Price, 169 Miss. 531, 152 So. 889; Ford v. American Home Fire Ins. Co., 192 Miss. 277, 5 So.2d 416; Hartford Fire Ins. Co. v. Knight, 146 Miss. 862, 111 So. 748; Insurance Co. of North America v. Pitts, 88 Miss. 587, 41 So. 5; Liverpool London Globe Ins. Co. v. Delaney, 190 Miss. 404, 200 So. 440; Wilkinson v. Goza, 165 Miss. 38, 145 So. 91; Socicero v. National Union Fire Ins. Co. of Pittsburg, 90 Fla. 820, 106 So. 879; Code of 1942, Secs. 8065, 8066, 8067; 55 C.J. 38; 46 Am. Jur. 614, Secs. 450, 451.
The appellee did not request any instructions from which the jury could find that the value of the automobile was $1750. On the other hand, appellee requested and the court granted the following instruction: "The Court instructs the jury for the plaintiff that if you find for the plaintiff, you shall assess the damages in an amount of the fair cash market value of the car in question on the date that it was stolen, to-wit: December 22, 1944, but not in excess of the price fixed by the Office of Price Administration, to-wit, $1378.00." Appellee cannot complain of the amount of the judgment in view of the above instruction. By requesting the foregoing instruction the appellee waived any right to now allege as error the measure of damages.
Kurn v. Fondren, 189 Miss. 739, 198 So. 727; Mitchell v. Film Transit Co., 194 Miss. 550, 557, 13 So.2d 154; General Exchange Ins. Co. v. Tierney, 152 F.2d 224.
Breland, Brocato Lowrey, of Clarksdale, for appellee.
The sole and unconditional ownership clause in a fire insurance policy refers to the actual, substantial and beneficial ownership of the property; and as both the legal and equitable owner of the automobile in question, appellee was entitled to recover.
Alabama, Great Southern R. Co. v. Daniell, 108 Miss. 358, 66 So. 730; Automobile Ins. Co. v. Hicks, 145 Miss. 842, 111 So. 362; Ayers v. Tonkel, 138 Miss. 712, 103 So. 361; Barney v. Scherling, 40 Miss. 320; C. R. Stores v. Scarborough, 189 Miss. 872, 196 So. 650; Faulkner v. Middleton, 186 Miss. 355, 188 So. 565; Ford v. American Home Ins. Co., 192 Miss. 277, 5 So.2d 416; Groce v. Phoenix Ins. Co., 94 Miss. 201, 48 So. 298; Gee v. Rimmer, 188 Miss. 460, 195 So. 342; Greer v. Pierce, 167 Miss. 65, 147 So. 303; Hartford Fire Ins. Co. v. Knight, 146 Miss. 862, 111 So. 748; Hartford Fire Ins. Co. v. Williams, 165 Miss. 233, 145 So. 94; Haynes-Walker Lumber Co. v. Hankins et al., 141 Miss. 55, 105 So. 858; Hemming v. Rawlings, 144 Miss. 643, 110 So. 118; Liverpool London Globe Ins. Co. v. Cochran, 77 Miss. 348, 26 So. 932; Insurance Co. of North America v. Pitts, 88 Miss. 587, 41 So. 5; Liverpool London Globe Ins. Co. v. McGuire, 52 Miss. 227; Liverpool London Globe Ins. Co. v. Delaney, 190 Miss. 404, 200 So. 440; Mobile O.R. Co. v. Cox, 153 Miss. 597, 121 So. 292; Mississippi Cent. R. Co. v. Roberts, 173 Miss. 487, 160 So. 604; Phoenix Ins. Co. v. Bowdre, 67 Miss. 620, 7 So. 596; Rosenstock v. Mississippi Home Ins. Co., 82 Miss. 674, 35 So. 309; Shelton v. Underwood, 174 Miss. 169, 163 So. 828; St. Louis S.F.R. Co. v. Bowles, 107 Miss. 97, 64 So. 968; Sunflower Bank v. Pitts, 108 Miss. 380, 66 So. 810; Travelers' Fire Ins. Co. v. Price, 169 Miss. 531, 152 So. 889; Universal Truck Loading Co. v. Taylor et al., 178 Miss. 143, 172 So. 756; Wilkinson v. Goza, 165 Miss. 38, 145 So. 91; F.W. Woolworth Co. v. Volking, 135 Miss. 410, 100 So. 3; Yazoo M.V.R. Co. v. Smith, 188 Miss. 856, 196 So. 230; Socicero v. National Union Fire Ins. Co. of Pittsburg, 90 Fla. 820, 106 So. 879; American Basket Co. v. Farmville Ins. Co., 3 Hughes 251; American Ins. Co. v. Peebles Co., 5 Ga. App. 734, 64 S.E. 304; Brown v. Connecticut Fire Ins. Co., 197 Mo. App. 317, 195 S.W. 62; Capital City Ins. Co. v. Caldwell, 95 Ala. 77, 10 So. 355; Galloti v. Continental Ins. Co., 273 N.Y.S. 29, 152 Misc. 351; McCollough v. Home Ins. Co., 155 Cal. 659, 102 P. 814; Palmetto Fire Ins. Co. v. Fansler, 143 Va. 884; 29 Am. Jur. 485; 26 C.J. 172; Appleman on Insurance, Sec. 2485.
Under the policy of insurance in the instant case, the measure of damages for the automobile destroyed by fire is the fair cash market value thereof at the time of its destruction ($1750.00), plus rental of a substitute automobile for 16 days at $5.00 (90.00); and the recovery of damages is not limited by regulations of the Office of Price Administration.
Bledsoe v. Doe ex dem Little, 4 How. (5 Miss.) 13; Witherspoon v. State, 138 Miss. 310, 103 So. 134; Stuart v. Swanzy, 12 Smedes M. (20 Miss.) 684; Fugate v. State, 158 P.2d 177; General Exchange Ins. Co. v. Tierney, 152 F.2d 224; Nagle v. United States, 145 F. 302.
Argued orally by Chas. A. Sisson, for appellant, and by Vincent J. Brocato, for appellee.
This is a suit by the appellee, W.M. Staten, on a policy of insurance issued in his favor by the appellant, St. Paul Fire Marine Insurance Company, wherein he seeks to recover the value of an automobile which was lost by theft and fire on December 22, 1944. The policy recites that the actual cost, including equipment, of the automobile on November 1, 1941, was the sum of $1,300.30, and that the sole owner thereof at the time of the issuance of the insurance was the said W.M. Staten. He sued for the sum of $1,750 as the alleged actual value of the automobile at the time of loss, and for the sum of $150 as rentals for taxicabs as a substitute for the said automobile subsequent to its loss, and which maximum rental allowance is provided for under the terms of the policy, provided the insured has furnished the original receipts for such rentals within sixty days after the occurrence of the loss. These receipts were never furnished to the company, nor produced at the trial.
There was a judgment for the plaintiff, W.M. Staten, in the sum of $1,378, representing the OPA ceiling price allowed to a dealer or the replacement cost of the automobile at the time of such loss, the sum of $1,110 being the ceiling price allowed to an individual in making a sale of an automobile of such make and model. The insurance company has taken a direct appeal from the said judgment, and the insured has prosecuted a cross-appeal.
On the direct appeal, the appellant contends (1) that the insurance company was entitled to a directed verdict in its favor for the reason that the insured was not the sole and unconditional owner of the automobile as contemplated by the policy; and (2) that in any event the cause should be reversed because of the giving of certain instructions in favor of the insured.
It appears from the evidence that on November 1, 1941, when the insured purchased the automobile in question from the Friars Point Motor Company, at a time when his wife, Mrs. W.M. Staten, was present, he caused the memorandum of the sale, which is referred to in the record and briefs of counsel as a bill of sale, to be made out in the name of Mrs. W.M. Staten as purchaser. This memorandum, however, was not then or thereafter delivered to her, but the same was retained in the possession of W.M. Staten. He thereupon took possession of the automobile, exercised full control over the same, and used it exclusively in looking after his farming interests and for other purposes until it was stolen on December 22, 1944, with the exception that on two occasions during the three year period of his possession thereof Mrs. W.M. Staten drove the automobile to a missionary society meeting at their local church.
The proof further discloses that when he purchased the automobile he gave in part payment of the purchase price a pickup truck owned by him and at an agreed value and credit of $475; that he paid the remainder of the purchase price by check on his individual bank account; that thereafter he purchased and had installed therein a radio, heater, seat covers and other additional equipment at his own expense; that he caused the automobile to be assessed to him for the purpose of ad valorem taxation throughout the period of his possession prior to the theft of the same; that he procured at his own expense the road and privilege tax license for the privilege of operating the same, the said Mrs. W.M. Staten not having obtained a driver's license for the use of an automobile at any time between the date of the purchase and the time of the theft of the said automobile; and that all annual insurance policies on the automobile were issued to, and paid for by, the insured, W.M. Staten.
To meet the foregoing proof as to the sole ownership of the insured, W.M. Staten, the following facts and circumstances are relied upon by the insurance company as proof that Mrs. W.M. Staten was the owner; (1) the memorandum of the sale hereinbefore mentioned; (2) the proof of loss showing that the automobile belonged to Mrs. W.M. Staten, and which proof of loss was executed and acknowledged by both Mr. and Mrs. W.M. State; (3) a verbal statement of Mrs. Staten to the notary public when the proof of loss was made, saying that it was her automobile; and (4) their failure to reply to a letter written to them by the local attorneys of the insurance company on March 6, 1945, calling their attention to the fact that the proof of loss furnished on the day before disclosed that the automobile was the property of Mrs. Staten, and that liability for the payment of the insurance "may be denied" by the company.
In view of the undisputed testimony that the insured had the possession and use of the automobile for more than three years after the memorandum of the sale was made out in the name of Mrs. W.M. Staten as purchaser, and that the automobile itself was not then or thereafter delivered to or claimed by her as her individual property, so far as the record discloses, and in view of the further fact that the Statens denied that they had stated at the time of the execution of the proof of loss that the automobile belonged to her or that the proof disclosed such fact at the time it was signed by them, and further denied that their attention was called to the amendment in the proof showing ownership in her when they acknowledged before the notary public the fact that they had signed the proof, the Court is of the opinion that the issue as to whether or not the substantial and beneficial ownership of the automobile was vested solely in the insured was a question for the jury, even if the memorandum of the sale, which did not contain any granting or conveying clause, had the effect of vesting the naked legal title in the said Mrs. W.M. Staten.
Although the preponderance of the evidence may tend to establish the fact that the attention of the insured was called to the amendment to the proof of loss after he had signed and before he had acknowledged the same, the motion for a new trial does not allege that the verdict on the conflicting testimony in regard thereto was against the greater or overwhelming weight of the evidence.
The failure of the Statens to reply to the letter of March 6, 1945, which called their attention to what the proof of loss disclosed as finally executed, was a circumstance for the consideration of the jury, but such fact in connection with the other evidence would not entitle the insurance company to a peremptory instruction, since the letter nevertheless left the matter in doubt as to whether liability would be denied, and when liability was in fact denied the suit of the insured to recover on the policy was thereafter instituted with reasonable promptness.
It was stipulated in the insurance contract that "by acceptance of this policy the insured agrees that the statements in the declarations are his agreements and representations, and that this policy is issued in reliance upon the truth of such representations," and the statement that W.M. Staten is the sole owner is found under the caption "Declarations" therein. The question for decision in the case, however, was who in fact was such owner under all of the facts and circumstances.
After a careful study and consideration of all the former decisions of this Court cited by counsel and the rules laid down by the text writers as to the conditions under which liability should be denied or upheld in a suit on a policy where the question of sole ownership of property is involved, the Court is of the opinion that the facts of this case presented an issue for the jury as to whether or not the insured was the substantial, beneficial and equitable owner of the automobile in question, on whom the loss would fall, and that the instructions fairly submitted that issue to the jury, although subject to some criticism as to form and substance.
At the conclusion of all the evidence the insured asked for a peremptory instruction on liability, but not for any specific sum of money. In overruling the motion the Court expressed the view that the maximum liability, if any, would be the replacement value of the automobile at a dealer's OPA ceiling price of $1,378. The plaintiff seems to have acceded to this limitation on a recovery when he asked for and obtained the following instruction: "The Court instructs the Jury for the plaintiff that if you find for the plaintiff, you shall assess the damages in an amount of the fair cash market value of the car in question on the date that it was stolen, to-wit: December 22, 1944, but not in excess of the price fixed by the Office of Price Administration, to-wit: $1,378.00." That is to say, he did not ask for an instruction to be marked "given" or "refused" authorizing the jury to return a verdict for the actual or replacement value of the automobile under all of the evidence in regard thereto, without reference to OPA regulations. Therefore, he cannot complain on cross-appeal that the jury followed the only instruction requested by him as to the amount of the verdict.
Affirmed on both direct and cross-appeals.