Fore v. United States Fire Ins.

Smith, C. J., delivered the opinion of the court. This is an action at law by the appellant on a fire insurance policy for two thousand dollars issued to him by the appellee. By a special- plea the appellee set forth a provision of the policy that: “This entire policy, unless otherwise provided by agreement indorsed hereon, or added hereto, shall be void, if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy. ” . And it further alleged: That permission for additional insurance on the property covered by the policy to the amount of two thousand dollars was indorsed on the X)olicy, but that the appellee had procured other insurance thereon to the amount of eight thousand dollars, making the total insurance on the property ten thousands dollars; [510] that, its agent having “beard through outside sources that this additional insurance in excess of the amount permitted by defendant’s policy sued on had been taken out by plaintiff in this suit on the same property covered by this defendant’s policy sued on herein, the said agent of this defendant, B. L. Boberts, at once wrote the plaintiff, Dr. O. R. Fore, the following letter, which was received by him in due course of mail which is in words and figures, to-wit: ‘. . . We are advised by Mr. E. A. Iiowell, that you have obtained an additional policy of six thousand dollars covering on your residence through Mr. T. E. Bourgeois, making a total together with the two thousand dollars written by the Bank agency of ten thousand dollars on your residence. In our opinion five thousand dollars is the extreme limit of insurable value of this building in its present condition.Of course, you have not advised us regarding what other insurance you may have on the building, so we would appreciate it, should there be more than five thousand dollars total insurance on the building, that you advise us, so that we may adjust it, either by reduction’or the cancellation of our two thpusand dollars or a reduction of your other insurance carried. Thanking you very much indeed for your kind attention. . . . ’ “That the request made in said letter was ignored by the plaintiff herein, and not complied with, nor was said letter answered in any way. ” The appellant’s reply to this plea admitted its allegations, except that it denied that the request made of him in the letter of the appellee’s agent therein set forth was not complied with, and alleged: “That he immediately answered the said letter from B. L. Roberts informing him fully of all the additional insurance taken upon the property covered by the policy sued on herein, and telling him that there was now not ten thousand dollars, but only eight thousand dollars, on the property, and said, ‘I hope that this would be satisfactory,’ but received no reply to said letter, and he [511] charges that, with full knowledge of the existence of the said additional insurance defendant’s agent, B. L, Roberts remained silent, did not cancel this policy sued on herein nor return the unearned premium thereon, and plaintiff supposed and had a right to believe that the policy sued on' herein would be allowed to stand in force,, and, had he not believed this, he could and would have gotten other insurance. ’ ’ The appellee by a rejoinder denied that its agent had received the letter referred to in the appellant’s replication. No part of the premium paid on the policy was tendered by the appellee either with its plea or rejoinder. To this rejoinder the appellant demurred, and, upon his demurrer being overruled, declined to plead further, and there was a judgment finsil for the appellee. One of the provisions of the policy, a copy of which was attached to the declaration, is: “If this policy shall be canceled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of the policy.” The appellee’s agent herein referred to was authorized by it to issue and cancel policies of insurance. The questions presented to us for decision are: First, did the appellant through its agent waive the additional insurance provision of the policy, or, because of its agent’s conduct, is the appellee estopped from pleading the provision as a defense"? and, second, can the appellee plead that provision of the policy as a defense to liability therein without tendering the unearned portion of the premium with its plea? The appellee’s agent was not called on to take any affirmative action when he learned of the breach of the additional insurance clause of the policy sued on (Insurance Co. v. Scales, 71 Miss. 975, 15 So. 134, 42 Am. St. Rep. 512), nor to return the unearned portion of the premium paid thereon until called on therefor (Ætna Ins. Co. v. Mount, 90 Miss. 642, 44 So. 162, 45 So. 835, L. [512] R. A. [N. S.] 471). He was called on to-refrain from any affirmative act in recognition of the policy’s continued existence, dr that would mislead .the appellant into believing that he intended to waive the additional insurance provision. Miss. Home Ins. Co. v. Dobbins, 81 Miss. 623, 33 So. 504; Miss. Home Ins. Co. v. Dobbins, 81 Miss. 631, 33 So. 506. His letter to the appellant cannot be construed as an approval of the additional insurance; for it is simply a request for a verification of the information he had received from other sources and expressly states that the appellee would not approve a total insurance on the property of more than five thousand dollars. Since the appellant’s letter to the appellee’s agent was not received by him, it cannot, and we do not understand Counsel for the appellant to contend that it should, be taken into consideration here. It was not necessary for the appellant to tender the unearned portion of the premium with its plea. The policy provides that the unearned portion of the premium shall be returned but “on surrender of this policy.” Consequently the appellant is not called on to return it until the policy is surrendered. Ætna Ins. Co. v. Mount, supra. It is true that in this case it was said that the insured had a right to rely on the breach of one of the conditions of the policy “and plead it and then and there tender with its plea the unearned portion of the premium. ” But this remark as to the tender of the unearned portion of the premium was not called for by the case there presented to the court for decision. No such question was raised therein; the unearned portion of the premium having been tendered with the plea. Affirmed.