INSURANCE CO., LTD., v. FUSTON

Watkins Eager, of Jackson, for appellant.

The policy provided that it would be void if the interest of the appellee in the building was other than sole and unconditional ownership, and the appellee testified that he told the agent at the time the policy was written that he was the sole and unconditional owner of the building, although it was on leased land. It now develops from the testimony that the appellee was not the sole and unconditional owner of the building, but merely a lessee.

The validity of that part of the policy providing that it would be void if the appellee was other than the sole and unconditional owner of the property has been upheld by this court in a number of cases.

Groce v. Phoenix Ins. Co., 48 So. 298; Rosenstock v. Miss. Home Ins. Co., 35 So. 309, 82 Miss. 674; Bacot v. Phenix Ins. Co., 57 So. 729, 96 Miss. 223; Hartford Fire Ins. Co. v. McCain, 106 So. 529, 141 Miss. 394; Levey v. Dyess, 51 Miss. 501; Clymer Opera Co. v. Rural Valley Mutual Fire Ins. Co., 50 Pa. Sup. Ct. 645.

We also call Your Honors' attention to the fact that the appellee in this case was an educated man; that he was a business man holding a responsible position with the Gulf Refining Company, a large corporation; that he had this policy in his possession from the date it was delivered to him to the time the property was destroyed by fire. He is presumed to have read his contract and is bound by the terms of the contract, and cannot claim the benefits now of one of the provisions of the contract and disclaim any knowledge of another provision of the same contract.

Springfield Fire Marine Ins. Co. v. Nix, 138 So. 598, 162 Miss. 669; Maryland Cas. Co. v. Adams, 131 So. 544, 159 Miss. 88; Buhlinger v. United Firemen's Ins. Co., 16 S.W.2d 699.

We respectfully submit that under the undisputed facts and on the positive testimony of the appellee himself and on the appellee's admitted pleadings in the case, the appellant is entitled to have this case reversed and dismissed. It cannot be successfully denied that the appellee was neither the sole nor the unconditional owner of the filling station building. He purchased a lease from Dr. Church and the building was on the land at the time he leased the property. The lease was only for a period of three years, with the right to renew for three years. He did not reserve the right to move the building at the expiration of the lease. Consequently, the building belonged to Dr. Church. In the face of his positive statement to the agent that he was the sole and unconditional owner of the building, and the right of the agent to rely thereon, we respectfully submit that the case should be reversed and dismissed.

F.E. Leach, of Carthage, for appellee.

In the case of Home Insurance Company v. Gibson, 17 So. 13, we find a similar case to the one now under review. In this case the insured occupied the premises under a lease contract and built the building thereon himself, with the express provision that on the termination of his lease the building was the property of the lessor, and the suit was defended by the insurance company on several grounds, one of which was that the insured was only a lessee. The court held in this case that the insurance company was liable and after a thorough review of the facts said: (1) "Knowledge of the agent, who obtained the insurance acquired from the insured at the time of the application, that the latter was only a lessee of the property covered by the policy, is binding on the company with respect to any subsequent renewals of such policy through such agent, notwithstanding the policy provides for absolute ownership, and that no agent of the company shall have power to waive any condition therein. (2). A lessee is not deprived of the right to recover the full amount of the policy by the fact that he had an independent agreement with his lessor, whereby the premium and amount of the policy, in case of loss, were to be shared between them in stated proportions."

Liverpool London Globe Ins. Co. v. Farnsworthy Lbr. Co., 17 So. 445; Phoenix Ins. Co. v. Randle, 33 So. 500; Big Creek Drug Co. v. Stuyvesant Ins. Co., 75 So. 768.

We respectfully submit that in the instant case, W.S. Still, the party who accepted the premium in this insurance policy and delivered the policy to appellee was the agent of appellant to the extent that if the policy was issued on this building after he had been advised that the building was on leased land, then the appellant waived its warranty in the policy and are estopped to take advantage of this clause and defend this cause on this stipulation in the policy. This rule has been specifically announced and adhered to by our court in the cases herein cited and many others not necessary to mention or call to the court's attention.

Home Ins. Co. v. Thornhill, 144 So. 861; 26 C.J. 676.

In 26 C.J., page 678, as to implication of agreement it is held the agreement may be either in express terms or implied from circumstances. The making of such an agreement before annexation may be inferred from the recognition by the landowner, subsequently thereto of rights in another person, and even under some circumstances from his mere acquiescence in the act of annexation.

Duke v. Shackleford, 56 Miss. 552.

We respectfully submit that a parole agreement as to the house insured being the property of the appellee and his grantors would be binding even on Doctor Church; and this agreement is implied from the various sales and from the subsequent lease of Doctor Church to appellee, which lease contract specifically leases the lot and not the building or filling station; while we concede that if Doctor Church had sold this lot without notice to his vendee, and this action was between appellee and the vendee of Doctor Church the rule would be different.

We respectfully submit that the issues of facts in this case as to ownership of the building and the ownership of the land on which the same was situated, was submitted to the jury under the pleadings in this case and the proper instructions of the court, and that the correct verdict was reached and the correct judgment was entered; and consequently that the case should be affirmed.

Argued orally by W.H. Watkins, Jr., for appellant.