
    Aetna Insurance Company of Hartford v. William M. Renno.
    [50 South. 563.]
    1. IwstfkaNce. Fire. Cancellation of policy. Waiver of notice "by agent.
    
    Where, in issuing a policy, a fire insurance agent agreed with the assured to keep the property insured, and was authorized to place the risk with any insurance company he might elect, he could waive for the assured the notice of cancellation provided for in the policy and obtain for him a new policy, in lieu of the first one, from another company.
    
      2. Same. Delivery of policy. Case.
    
    In such case, the fact that the cancelled policy remained in the custody of the assured and the new one, sent to a subagent for delivery, was not actually delivered to or accepted by the assured personally until after the fire, will not affect liability on the new policy.
    From the chancery court of, first district, Hinds county.
    How. G. Gardawd Lyell, Chancellor.
    Renno, appellee, was complainant in the court below; the Aetna Insurance Company of Hartford, appellant, and the Mississippi Home Insurance Company, were defendants there. From a decree dismissing the suit as to the Mississippi Home Insurance Company, but granting the complainant relief •against appellant, the Aetna Insurance Company appealed to •the supreme court.
    The facts are fully stated in the report of a former appeal of this case, Aetna Insurance Company v. Renno, 93 Miss. 594, 46 South. 947. After the case was remanded to the chancery court for a new trial, tbe complainant amended bis bill of complaint, and additional testimony was taken, tbe substance of wbicb is set forth in tbe opinion of tbe court.
    
      McLaurin, Armistead & Brien, and Tim JE. Cooper, for appellant.
    Appellee'bas testified tbat neither Harvey nor Yoltz had any authority to represent him in cancelling tbe policy wbicb tbe Mississippi Home Insurance Company bad issued and delivered to him. Accordingly, such insurance policy bad not been cancelled when tbe property was burned. And, as such policy was still in force then, tbe Aetna Insurance Company cannot be held liable to appellee.
    Tbe evidence fails to show any agreement between appellee- and -the agents of tbe Aetna Insurance Company whereby a decree against appellant could legally be rendered.
    Tbe only agreement of any kind was that Harvey was tore-insure tbe property when tbe Mississippi Home Insurance Company policy should expire. Such policy bad not expired. Aetna Ins. Co. v. Benno, 93 Miss. 595, 46 South. 941.
    Appellee is shown by tbe evidence to have relied upon no-claim of agency. ■ His contention, as shown by tbe testimony,, is tbat Harvey was trying to deceive him when Harvey got the-policy of tbe Mississippi Home Insurance Company from him.. His testimony shows tbat be himself considered no one else to-have any authority to represent him. Admitting bis testimony to be true, it is not sufficient to raise an agency to accept notice-of tbe cancellation of tbe policy. Jolmson v. Insurance Co., 66' Ohio St. 6; Clarice v. Insurance Co., 35 L. R. A. 276; Quong-Tue Sing v. Insurance Co., 10 L. R. A. 144.
    As held by this court, on tbe former appeal of this case, cited above, an unauthorized person cannot insure tbe property of another against loss by fire; and after tbe property bas burned, tbe owner cannot ratify a policy previously obtained without, bis consent or knowledge.
    
      The policy of the Mississippi Home Insurance Company stipulates that it may be cancelled upon the giving of five days’ notice, and it is admitted that such notice was never given. It •'is the existence of such policy at the date of the fire which prevented the policy of the Aetna Insurance Company from attaching. The effort of appellee to show authority given to the Lake-Lott Company or to either Volte or Harvey to accept notice of cancellation completely failed. Suppose that the policy of the' Aetna Insurance Company had never been written, and there had only been a notation, on the books of the Lake-Lott agency, showing a cancellation of the policy and a notification .given to Harvey of such fact together with a request that Harvey notify appellee. Would this court hold that the cancellation of the policy of the Mississippi Home Insurance Company was a valid cancellation, without notice to appellee ?
    The vital question here is whether or not the policy of the Mississippi Home Insurance Company had been legally can--celled at the date of the fire.
    
      J. B. Stirling, F. M. West, and L. Brame, for appellee.
    It is certain that the agent of the Aetna Insurance Company •agreed with Eenno to keep his fire insurance in force, and that Eenno had no choice as to what insurance cbmpany should carry the insurance. The insurance agency did not require Eenno •to pay at once the insurance premium on any policy when is•sued, but kept a written account on its books wherein he was •charged with the premium when it became due, it being understood that Eenno should pay later. Eenno had the right to rely on.the agency for protection, as a result. Ham v. Insur■ance~ Co., 80 Minn. 139; 22 Cyc. 1447; Schauer v. Insurance Co., 88 Wis. 561; Insurance Co. v. Wight, 55 Fed. 455; Dibble ■■V. Assurance Go., 70 Mich. 1, 14 Am. St. Eep. 470; 1 Joyce •on Ins. § 639, 640; Hannah v. Insurance, 37 South. 506.
    It is shown in evidence that Eenno stated to Harvey: “If .you insure me, I want you to insure me; and when it expires, I want yon to re-insnre me.” Harvey replied that if Renno would entrust his business to him, he would keep Renno insured. And in such conversation Harvey told Renno: “We will look after you, and keep it insured. Your place will be insured, and we will keep it insured. You need not be uneasy. Just leave it to us.” The foregoing conversation was not ■shown in evidence in the former trial. Had it been, the former ■decree would not have been reversed and cause remanded on the former appeal. Aills, local merchant, and Voltz, a soliciting agent of the Lake-Lott insurance agency, now testify as to the substance of such conversation. They did not so testify on the former trial.
    Their testimony changed the matter entirely, insofar as the liability of the Aetna Insurance Company is concerned. Mc-•Gartney v. Insurance Go., 33 Mo. App. 652.
    If an insurance agent has the general authority to keep the property insured or to substitute insurance, the authority to waive notice of cancellation exists. Herman v. Insurance Go., 110 N. Y. 411; Bingham v. Insurance Go., 74 Wis. 498; Stone v. Insurance Go., 105 N. Y. 543; Davis v. Insurance Go., 95 Wis. 234.
    The fact that the cancelled policy of the Mississippi Home Insurance Company remained in the hands of the insured, and that the new policy, in its place, was not delivered to the insured until after the fire, will not affect the right of the insured, the appellee, to recover on the latter policy; there being no neglect on the part of appellee under the circumstances.
    Argued orally by J. B. Stirling, for appellee.
   Whitfield, O. J.,

delivered the opinion of the court.

The testimony of Voltz and of Aills set out clearly and explicitly the conversation had between Voltz, Harvey, and Renno; Aills being present and hearing same. That conversation, as detailed by Aills, is in substance as follows: That Ren-

no and Harvey were having a conversation about this insurance. “They appeared to’ be looking over some papers. Renno said :• ‘If you insui’e me, I want you to insure me; and when this expires, I want you to reinsure me.’ And they talked along that way in conversation, I suppose, about five minutes. Harvey said to Renno: Hf you will trust your business, or turn over your insurance, to me, we [that is, Harvey and Yoltz] will keep you insured. We will look after you and keep it insured.. Your place will be insured, and we will keep it insured. You need not be uneasy; just leave it to us.’ ” Yoltz testified to-the same conversation, in substance, except that he makes it perhaps more explicit and full even than Aills. The effect of this conversation, which was not testified to in the former trial by Yoltz, who was then a witness, and which was never testified' to by Aills until this trial, Aills never having been introduced' before, was to make an entirely different state of case; on the testimony, from that presented by the former record — a state-of case by which the liability of the appellant clearly appears. The learned chancellor reviewed the testimony of these two witnesses as a question of fact in the case, and, we may say, all-controlling fact, and entered a decree, evidently on account of their testimony, changing tire case entirely from what it was before, in favor of the appellee. Neither of these witnesses was in any -way impeached in any mode known to the law, and Aills seems to be a reputable merchant, and both Aills and Yoltz testify that they have no interest whatever in the case.

Under these circumstances, we think the decree of the chancellor, finding the facts as he did, is correct, and the decree is affirmed.

Mayes, J.,

delivered the following dissenting opinion:

In my judgment the nonliability of the Aetna Insurance Company to Renno was finally settled in the case of Aetna Insurance Company v. Renno, 93 Miss. 594, 46 South. 947; but’if I am mistaken in this, the facts of this case do not establish any liability on tbe part of tbe above company. Renno denied in tbe case as originally made tbat Harvey or Yoltz bad any authority to represent bim in tbe cancellation of tbe Home Insurance policy. Therefore, as declared in the former opinion, tbe Home Insurance policy bad never been canceled and was tbe only insurance which attached to this risk, either under tbe facts of tbat case or under tbe facts of tbe so-called new case which comes to this court now. Tbe facts now do not show tbat there was any agreement to do anything except to reinsure when tbe policy expired. Tbe policy bad not expired, and there was no authority given by Renno, either expressly or impliedly, to any agent of any company to cancel this policy without notice to bim as stipulated in tbe policy and before its expiration. I do not recapitulate tbe facts, since they are fully stated in the case in 93 Miss. 594, 46 South. 947, supra.

I think tbe decree should be reversed, and dismissed as to tbe Aetna Insurance Company.  