Aetna Insurance Co. v. Cowan

• Decision Date: 15 May 1916
• Docket Number: 17891
• Citation: 71 So. 746,111 Miss. 453
• Court: Mississippi Supreme Court
• Parties: AETNA INSURANCE COMPANY v. COWAN COUNTY TREASURER

71 So. 746

111 Miss. 453

AETNA INSURANCE COMPANY v. COWAN COUNTY TREASURER

No. 17891

Supreme Court of Mississippi

May 15, 1916

APPEAL from the circuit court of Jackson county, HON. J. J BALLENGER, Judge.

Suit by R. W. Cowan, Treasurer of Jackson County, against the AEtna Insurance Company. From a judgment for plaintiff on peremptory instruction, on sustaining his demurrers to defendant's pleas, defendant appeals.

This is a suit brought by R. W. Cowan, treasurer of Jackson county Miss., on a policy issued by the AEtna Insurance Company to Mrs. J. M. Pelham, insuring a certain dwelling house in Pascagoula, Miss., for two thousand, five hundred dollars and insuring certain household furniture in the same policy for five hundred dollars, the total amount of the policy being for three thousand dollars. In this policy was a loss payable clause, which provided that:

"Any loss or damage that may be ascertained and proven to be due the assured under this policy shall be held payable to the treasurer of Jackson county, Mississippi, as his interest may appear. Understood that loss payable clause applies to first item of this policy for two thousand, five hundred dollars on building and not on the second item of household furniture."

On the 23d day of March, 1914, a fire occurred which totally destroyed the household furniture, and, according to appellee's version of the case, also totally destroyed the building insured, but according to the appellant's version the destruction of the building was only partial. There was a disagreement between the parties as to the extent of the damage done the building, and an appraisement was demanded under the provisions of the policy sued on, one appraiser having been appointed by Mrs. Pelham, the holder of the policy, and another appraiser by the insurance company and an umpire was selected by the two; and when the appraisers met the amount of damage to the building insured under the policy sued on was fixed at the sum of two thousand and twenty-nine dollars and thirty-three cents. The treasurer of Jackson county, who was payee in the loss payable clause was not a party to this appraisement. The insurance company tendered the amount of said award two thousand, twenty-nine dollars and thirty-three cents to him, but the tender was refused. After this tender was refused the insurance company, on the 17th day of June, 1914, demanded of Cowan, treasurer, another appraisement as to the damage done to the building, upon the theory that the loss to the building was a partial loss, and that under the terms of the policy it was entitled to an appraisement of the damage done. The county treasurer, however, refused to appoint an appraiser, claimed a total loss, and on the 30th day of June, 1914, filed his suit in the circuit court of Jackson county for the full amount of the two thousand, five hundred dollar item of the policy, and alleged in his declaration that the destruction of the building was complete, and that the loss was a total loss, and that he was entitled to the entire amount for which the building was insured. To this declaration the defendant filed a plea in abatement, setting out that the loss to the building was only a partial loss, and that under the terms of the policy sued on that the defendant was entitled to an appraisement in the manner provided in the policy before a suit could be brought, and that the suit was begun prematurely by reason of the fact that the plaintiff had refused to submit to an appraisement. The above plea was demurred to by the plaintiff upon twelve grounds, and we set out those argued and relied upon by the plaintiff as follows:

"First. The averment in said plea that 'there was only a partial loss on the property insured under the policy sued on,' while not a direct and positive denial of the allegation in the declaration that said property was destroyed by the said fire, is in conflict therewith, and therefore said plea is defective and insufficient."

"Third. It is shown on the face of said plea that defendant, with knowledge of the interest of plaintiff in the said subject-matter of insurance, elected to, and did, ignore plaintiff and enter into said arbitration proceeding with the said Mrs. J. M. Pelham alone, and that said alleged arbitration failed through no fault of plaintiff, whereby the defendant waived its pretended right to require the plaintiff to enter into an appraisement and arbitration, as to the extent of the said loss, or damage.

"Fourth. It is shown on the face of said plea that the demand of defendant upon plaintiff for appraisement and arbitration was subsequent to that entered into by and between defendant and the said Mrs. Pelham, and was attempted by defendant without making the said Mrs. J. M. Pelham a party thereto, and that such attempted appraisement and arbitration was merely for the purpose of ascertaining the extent of said loss or damage to said property, without admitting defendant's liability for loss the damage as would be so awarded, but reserving therefrom the question of the liability of defendant, under the terms of said policy, for such loss or damage."

"Twelfth. It is shown in and by said plea...