Opinion
No. 38212.
January 21, 1952.
1. Insurance — renewal — writing not necessary.
The renewal of an insurance policy need not be in writing.
2. Insurance — renewal — nothing done by insured to effectuate renewal.
Where the insurer, ten days before the expiration of an existing policy, sent a written notice to the insured of the expiration date, with statement of cost of renewal and with request that the insured return the notice either with a payment of the premium or a statement that the premium would be paid in thirty days, but insured failed to pay the premium or return the notice or to indicate in any manner whether a renewal was desired, the insurer was not liable for a loss which occurred after the expiration date of the policy.
3. Insurance — renewal — estoppel.
Where the insured had taken no steps whatever to renew an automobile insurance policy but when after its expiration automobile was wrecked, insured then sent check for the renewal premium, which insurer promptly returned, the fact that the agent of the insurer told the insured that he would do what he could for her and sent an investigator to the vicinity constituted no estoppel to deny the renewal since such acts did not mislead insured as to the renewal or result in any disadvantage to her.
4. Insurance — general custom to renew policies.
The general custom in the insurance business to renew policies and extend credit is not available to a particular insured when no custom had been developed between her and the insurer, the only previous insurance transaction between them having been the issuance of the expired policy sued on.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Copiah County; J.F. GUYNES, Judge.
Henley, Jones Woodliff, for appellant.
I. Under the laws of the State of Mississippi it is not necessary that the renewal of an insurance policy be in writing. Lumbermen's Mutual Ins. Co. v. Scale Engineering Co., 177 Fed. 2d 305; Liverpool London Globe Ins. Co. v. Hinton, 116 Miss. 754, 77 So. 652; Franklin Fire Ins. Co. v. Taylor, 52 Miss. 441; Palmetto Fire Ins. Co. v. Allen, 148 Miss. 97, 114 So. 145; Liverpool London Globe Ins. Co. v. Hinton, supra; Appleman, Insurance Law and Practice, Sec. 7645, Vol. 13, p. 409; 15 A.L.R. 1010, Annotations; 69 A.L.R. 568, Annotations; 92 A.L.R. 238, Annotations.
II. Defendant estopped to deny renewal of policy by its conduct. International Trust Co. v. Norwich Union Fire Ins. Soc., 71 Fed. 81; New York Life Ins. Co. v. Eggleston, 96 U.S. 572, 24 L.Ed. 841; Bellare v. Beneficial Life Ins. Co., 21 P.2d 847; Shackelford v. Sovereign Camp, Woodmen of the World, 209 N.C. 633, 184 S.E. 691, 108 A.L.R. 674; 108 A.L.R. 681, Annotations; Staton v. Bryant, 55 Miss. 261; Fraternal Aid Union v. Whitehead, 125 Miss. 153, 87 So. 453; United States v. Davis, 128 F.2d 725.
III. Plaintiff's evidence was sufficient to create issue for jury on the theory of estoppel. Mass. Bonding Ins. Co. v. Parsons Electric Co., 61 F.2d 264, 92 A.L.R. 218; Crosland v. Hunsucker, 129 S.E. 199; Crowther v. Sullivan, 290 S.W. 212; Supreme Lodge, K.P. v. Hooper, 282 S.W. 867; Equity Mut. Ins. Co. v. General Cas. Co. of America, 139 F.2d 723; Ulledalen v. United States Fire Ins. Co., 23 N.W.2d 856; Parkway, Inc. v. United States Fire Ins. Co., 58 N.E.2d 646; Sullivan v. Beneficial Life Ins. Co., 64 P.2d 351; Staton v. Bryant, 55 Miss. 261; Strauss Bros. v. Denton, 110 Miss. 745, 106 So. 657; State Farm Mut. Automobile Ins. Co. v. Collins, 43 S.E.2d 277; De Land v. Fidelity Health Accident Mut. Ins. Co., 37 N.W.2d 693; United Nat. Ins. Co. v. Cody, 59 S.E.2d 310; 45 C.J.S. 749; Fidelity-Phenix Fire Ins. Co. v. Redmond, 144 Miss. 749, 111 So. 366; 45 C.J.S. 756.
Landrum Busby, for appellee.
I. The sole question, according to defendant's theory, is whether or not where ten days before an insurance policy expires, the insurance company sends a notice of its expiration and this notice is duly received before the expiration of the insurance policy and the insured makes no effort to renew and fails to request a renewal or to pay therefor, and some fifteen days later has a wreck, can the insured after the wreck renew the policy effective as of a date prior to the wreck.
Defendant most respectfully states that in every case cited by the appellant there was either a contract of insurance issued or the insurer or its agent had agreed to issue a contract of insurance, or there was a course of dealing between the parties extending over a period of years whereby the insurer had automatically renewed the policies. Such is not true in this case. Not one single case is cited where the plaintiff first applied for the insurance after the subject matter of the policy was injured or destroyed and got it. The appellant had every opportunity to apply for the insurance. She had the means at hand; she knew exactly what to do, but apparently she was completely satisfied with her own driving ability and her own financial ability, and apparently had never previously needed insurance of this type. CCH Automobile Cases, Vol. 3, p. 49; Carden et al., Ex'rs. v. Liberty Mutual Ins. Co., (Ky.), decided March 21, 1939; Henrietta D. Upton v. Travelers' Ins. Co., 178 P. 851, 2 A.L.R. 1597; CCH Automobile Cases, Vo. 32, p. 522; Carroll v. Garlington-Hardwick Co., et al., Ga. Ct. of Appeals, #32,576, July 16, 1949; CCH Automobile Cases, Vol. 29, p. 37; State Farm Mut. Automobile Ins. Co. v. Abercrombie, Ark. Supreme Court, #48,361, February 9, 1948; CCH Automobile Cases, Vol. 21, p. 129; Soucie ex rel. Ziems, v. Ill. Agricultural Mut. Ins. Co., Ill. Appellate Court, 2nd Dist., #9953, July 20, 1944; Scottish Union National Ins. Co. v. Warren Gee Lumber Co., et al., 188 Miss. 740, 80 So. 9; Cook v. Lamar Life Ins. Co., 125 So. 409; U.S.F. G. Co. v. Mims Williams, 96 Miss. 10, 49 So. 342; Sec. 141, 29 Am. Jur. 155, Insurance, Sec. II.
Mrs. A.W. Simmons sued Motors Insurance Corporation to recover for damage to her automobile under an insurance contract. From an adverse judgment she appeals.
Her claim arose in this way: James R. Ulmer, of the Ulmer Buick Agency in Brookhaven, Mississippi, sold Mrs. Simmons a Buick automobile on January 22, 1948. Ulmer was also an agent of the Motors Insurance Corporation, which sells insurance on automobiles. Simultaneously with the cash purchase of the automobile, she signed an application for an insurance policy, offering to pay cash therefor. It was necessary to forward the application to the Jackson office of the appellee, where the policies are actually issued. Ulmer advised that it would not be necessary for her to pay cash at that time, as a thirty day credit would be extended. The policy was issued for one year, expiring January 22, 1949. Upon its delivery, on January 27, 1948, Mrs. Simmons gave her check in payment. At least ten days before the expiration date she received the following notice: "Your Automobile Physical Damage Insurance Policy 141M-1757 Expires 1-22-49. MIC Agent is Jas. R. Ulmer. The cost of renewing this policy for one year is $82.00.
"Just check the method of payment which is most convenient for you and forward this notice immediately to the MIC Agent in your Mrs. A.W. Simmons General Motors Dealership. Hazlehurst, Miss. Enclosed is entire premium. Enclosed is $ ____, balance to be paid within 30 days. 1948-51 Buick Sedan __________________________ REMEMBER Your MIC Signature agent has a dual interest in your satisfaction — as a car customer and as an insurance client.
Care for Your Car — Keep It Insured"
Mrs. Simmons neither signed nor returned the notice either to the Jackson office or to Ulmer. She neither communicated with them nor paid the amount or any part thereof. On February 7, 1949, after the expiration of the policy, her car was wrecked. On the next day she filled out the notice to renew, and forwarded it, together with her check for $82, to the Jackson office. Upon investigation, and, when the appellee determined that the damage was sustained after the expiration of the policy, it returned her check and declined to pay the loss.
Appellant contends, first, that it was not necessary for the renewal to be in writing. She testified that, when she made application for the insurance, Ulmer told her that she had thirty days within which to pay all premiums.
(Hn 1) There is abundant authority to sustain the contention that the renewal need not necessarily be in writing. Liverpool London Globe Co. v. Hinton, 116 Miss. 754, 77 So. 652; Appleman, Insurance Law and Practice, Sec. 7645, vol. 13, p. 409; and authorities there cited.
But appellant has evidently confused the right of renewal with the right to an extension of credit for the payment of premiums. (Hn 2) She was notified ten days in advance of the expiration. She was expressly informed that her policy would expire on January 22, 1949, and that the cost of renewing would be $82. She was requested to check the method of payment, which would be most convenient to her, namely, payment of the entire premium, or "$ ____, balance to be paid within 30 days", and to forward the notice to the MIC Agent. She was further admonished to "Care for your car. Keep it insured." It was, therefore, necessary for her to signify her intention to renew; otherwise, there would be no occasion to extend credit. In spite of the plain terms, she did not send the $82. She did not send any money at all. Besides, she did not even return the notice. In other words, she did not comply with any of the terms. Her inaction constituted a complete failure or refusal to ask for a renewal.
Under the foregoing circumstances, if the insurance company, without more, had renewed the policy and Mrs. Simmons had thereafter suffered no damage to her automobile, what court would allow the company to recover $82 from her? She would have a complete defense to such a suit, because she did not elect to comply with any of the terms, necessary to a renewal. Because she made no effort to renew, likewise, she can not compel the insurance company to reimburse her loss.
(Hn 3) Appellant also contends that appellee, by its conduct, was estopped to deny the renewal. But such acts as her sending the notice, together with her check, after the accident; the assurance of Ulmer that he would do what he could for her; the sending of an investigator to the vicinity; and the expression of hope by an employee of the Jackson office that Ulmer would be permitted to do the repair work, in no way misled the appellant or resulted in any disadvantage to her. The check was not cashed. Ulmer's act was mere business diplomacy. The investigation was for the purpose of determining liability. It was necessary to repair the car, and there was no proof that Ulmer's charges were excessive.
(Hn 4) Appellant further contends that it is the general custom, in the insurance business, to renew policies and extend credit, and that the appellee is bound by the prevailing custom. While appellee maintained that it operated its business in a manner different from insurance companies generally, the fact remains that no custom had been developed between these parties. The sale of the car and the application for the original policy were the only business transactions between them.
It follows that the trial court was correct in directing a verdict for the appellee.
Affirmed.
McGehee, C.J., and Kyle, Arrington and Ethridge, JJ., concur.