Opinion
No. 41627.
January 16, 1961.
1. Insurance — fire policy — mistake in amount in refunding premium as not keeping policy in effect.
A mistake as to amount in refunding premium for fire policy on dwelling destroyed by fire while unoccupied without vacancy permit did not keep policy in effect.
2. Insurance — fire policy — vacancy permit — failure to obtain as avoiding policy.
Where insured dwelling had been unoccupied for several months without vacancy permit at time it was destroyed by fire, insurer was not liable on fire policy for resulting loss.
Headnotes as approved by Hall, P.J.
APPEAL from the Circuit Court of Hinds County; M.M. McGOWAN, Judge.
Cox Dunn, Jackson, for appellant.
I. Defendant is barred because of its failure to tender return of the unearned premiums. Aetna Ins. Co. of Hartford v. Robinson (Ind.), 10 N.E.2d 601; Cox v. Owensville Mutual Benefit Aid Assn. (Mo.), 185 S.W.2d 28; German Ins. Co. v. Shader (Neb.), 93 N.W. 927; Guion v. Doherty, 43 Miss. 458; Kaskaskia Live Stock Ins. Co. v. Harvey Bros., 93 Okla. 107, 219 P. 672; Lititz Mutual Ins. Co. v. Lengacher, 248 F.2d 850; Luthy v. Northwestern Nat. Ins. Co. (Mo.), 20 S.W.2d 299; Mechanics Traders Ins. Co. v. Smith, 79 Miss. 142, 30 So. 263; Morrison v. Fidelity-Phenix Fire Ins. Co. (Mo.), 71 S.W.2d 816; Slovenian Mutual Benefit Assn. v. Kafelj (Ohio), 173 N.E. 630; Smith v. Williams-Brooks Co., 111 Miss. 393, 71 So. 648; State Life Ins. Co. v. Pletcher (Ind.), 134 N.E. 876; United States F. G. Co. v. Leong Dung Dye, 52 F.2d 567.
II. There was no proof of causal connection between the matters relied upon by appellee and the fire loss; wherefore, the policy was not voided. American Life Ins. Co. v. Walker, 208 Miss. 1, 43 So.2d 657; Baker v. Supreme Lodge, Knights of Pythias, 103 Miss. 374, 60 So. 333, Anno. Cas. 1915B 547; Hall's Aero Spraying Inc. v. Underwriters at Lloyd's, London, 274 F.2d 527; Hartford Accident Indem. Co. v. Shaw, 273 F.2d 133; Hossley v. Union Indem. Co. of New York, 137 Miss. 537, 102 So. 561; Martin v. Motors Ins. Corp., 219 Miss. 473, 68 So.2d 869.
Watkins Eager, Jackson, for appellee.
I. There was as a matter of law a causal connection between the vacancy of the insured property and the fire loss. Adams v. Maryland Casualty Co., 162 Miss. 237, 139 So. 453; Freed's Inc. v. American Home Fire Ins. Co., 8 N.W.2d 923; Home Ins. Co. v. Hardin, 162 Miss. 254, 139 So. 603; Hossley v. Union Indem. Co., 137 Miss. 537, 102 So. 561; Lester v. Mississippi Home Ins. Co. (Miss.), 19 So. 99; Martin v. Motors Ins. Corp., 219 Miss. 473, 68 So.2d 869; Public Fire v. Crumpton (Fla.), 148 So. 537; Western Assurance Co. v. McPike, 62 Miss. 740.
II. Defendant is not barred because of its failure to tender return of unearned premiums. Aetna Ins. Co. v. Mount, 90 Miss. 642, 44 So. 162; Aetna Ins. Co. v. Robinson (Ind.), 10 N.E.2d 601; American Nat. Ins. Co. v. Walters, 230 Miss. 616, 93 So.2d 616; Anderson v. American Foreign Ins. Co., 227 Miss. 324, 86 So.2d 303; Benanti v. Delaware Ins. Co. (Conn.), 84 A. 109; Bridgewater v. General Exchange Ins. Corp. (Mo.), 131 S.W.2d 220; Commercial Standard Ins. Co. v. Robertson, 159 F.2d 405; Commercial Union Fire Ins. Co. v. Kelly, 144 Miss. 833, 110 So. 681; Cookendorfer v. Pendleton, etc. Ins. Co. (Ky.), 155 S.W.2d 204; Crease v. Liberty Industrial Life Ins. Co. (La.), 151 So. 89; Crumpton v. Pilgrim Health Life Ins. Co. (Ala.), 46 So.2d 848; Dreeben v. Mutual Life, 29 F.2d 963; Hearne v. New England Mut. Marine Ins. Co., 22 L.Ed. 395; Ingram v. Fidelity-Phoenix Fire Ins. Co., 16 F.2d 251; John Hancock Mutual Life Ins. Co. v. Hefner, 35 A.2d 485; Kash v. Sun Life Assur. Co. of Canada, 14 A.2d 214; London Guarantee Acc. Co. v. Mississippi Cent. R. Co., 97 Miss. 165, 52 So. 787; McCracken v. Car General Ins. Corp. (N.H.), 55 A.2d 894; McPike v. Western Assur. Co. 61 Miss. 37; Mechanics Traders' Ins. Co. v. Smith, 79 Miss. 142, 30 So. 362; Medley v. General Alliance (W. Va.), 47 S.E. 101; Pearlstine v. Westchester Fire Ins. Co. (S.C.), 49 S.E. 4; Peterson v. Universal Automobile Ins. Co. (Idaho), 20 P.2d 1016; Red Men's Fraternal Acc. Assn. v. Rippy (Ind.), 103 N.E. 345; Riverside Development Co. v. Hartford Fire Ins. Co., 105 Miss. 184, 62 So. 169; State Farm Mut. Auto. Ins. Co. v. Calhoun (Miss.), 112 So.2d 366; State Life Ins. Co. v. Pletcher (Ind.), 134 N.E. 876; Summers v. Jefferson Standard Life Ins. Co., 142 S.W.2d 589; Westchester Fire v. Fitzpatrick, 2 F.2d 651; 29 Am. Jur., Sec. 862 p. 659; 26 C.J., Fire Ins., p. 326; 44 C.J.S. 1120, 1387; 45 C.J.S. 699, 700.
This action was brought by the appellant for recovery on a policy of fire insurance alleged to have been issued by the appellee on a three-story dwelling house situated near Russum, Mississippi. The house was destroyed by fire on June 6, 1958. Vacancy permit was applied for by appellant but was never issued. He issued his check for a vacancy permit after the fire. And on separate examination, as provided by the policy, he admitted that the house was vacant.
Robert Barksdale Company, Inc., is an insurance agency with whom the appellant places all of his insurance. Mr. Asher is an agent of Robert Barksdale Company, Inc., and is an insurance agent, duly licensed as such and gets commissions on all business written by him. Robert Barksdale Agency, Inc. was closed on June 3, 1958, and a special agent for the insurance company went over and withdrew all of the unused policies.
Mrs. Fred Wallace of Jackson is the rate clerk and policywriter with Barksdale Company, and Mr. Asher called her by telephone and asked about a vacancy permit on property situated in Jackson, and she stated to him that a vacancy permit was not necessary on Jackson property, but she testified that this is not the case with farm property.
Mr. Asher admitted that after the fire which destroyed the house, he undertook to obtain a vacancy permit and have it dated back, and he issued a post dated check in payment of same after the fire, but he never did obtain the vacancy permit.
The house was described in the policy as an approved roof, frame dwelling, occupied by tenant as a one-family dwelling, situated about four miles east of Russum, Mississippi, on the east side of Redlick Road, known as Oak Hill Road, in Jefferson County, Mississippi.
Mr. Asher also admitted that when he bought the land on which the house in question was situated he was really not interested in the house but only in the mineral rights, and in his purchase he obtained a three-fourths interest in the mineral rights.
Easter Combs testified that she lives with her husband in a tenant house on the place in question, but not in the house that burned. She said that Lyman Combs lived in the house that burned until he died in 1953, and that his wife, Helen, died about a year later, and that nobody has ever lived in the house since then. She said that after Helen's death there was one bed in the house, with no mattress on it, and also a couple of quilts and a couple of trunks which were his mother's and which things had never been moved out of the house, and that she also left an old food safe in the kitchen, as well as a table and two or three chairs. The death certificate of Helen Combs shows that she died February 17, 1958, and by testimony it was shown that no one else has ever occupied the house since that time.
Mr. Barksdale testified that he wrote up the vacancy permit but did not sign and send it to the insurance company, and asked their approval, but they refused to recognize the vacancy.
The jury in this case found in favor of the defendant and from a judgment entered on that verdict, Mr. Asher appeals.
(Hn 1) Due to a fully explained error, there was a mistake of $8.75 in refunding the premium on this policy, and the appellants contends that this kept the policy in effect, but we think this contention is wholly without merit. See 44 C.J.S., Insurance, p. 1387.
(Hn 2) As a matter of fact, the appellee was entitled to a peremptory instruction, but, since the jury found in favor of the appellee, the judgment of the lower court must be, and it is, hereby affirmed.
Affirmed.
Kyle, Arrington, Ethridge and Gillespie, JJ., concur.