Boston Ins. Co. v. Mars

• Court: Mississippi Supreme Court
• Writing for the Court: McGEHEE
• Citation: Boston Ins. Co. v. Mars, 246 Miss. 36, 148 So.2d 718 (Miss. 1963)
• Decision Date: 21 January 1963
• Docket Number: No. 42515,42515
• Parties: BOSTON INSURANCE COMPANY v. Leona and Ervin MARS.

Page 718

148 So.2d 718

246 Miss. 36

BOSTON INSURANCE COMPANY v. Leona and Ervin MARS.

No. 42515.

Supreme Court of Mississippi.

Jan. 21, 1963.

Watkins & Eager, William F. Goodman, Jr., Jackson, for appellant.

Watson & Wilkerson, Woodville, for appellee.

McGEHEE, Chief Justice.

On February 8, 1960, the appellant, Boston Insurance Company, through its local agent, Adams Insurance Company, at Gloster, Mississippi, issued a policy of insurance in the amount of $2,500 on a residence building and $1,500 on the contents of the building, amounting to the total sum of $4,000 against loss by fire.

The policy contained, among other provisions, one to the effect that no other fire insurance would be permitted on the property. That provision reads as follows:

'Other insurance is prohibited unless the total amount of insurance, including the amount of this policy, is inserted in the blanks provided on the first page of this policy under the caption Total Insurance. This company shall not be liable for loss while the insured shall have any other insurance prohibited by this policy.'

The insured, Ervin Mars, testified that he told Mr. Adams that the house was insured with a Mr. Berryhill, who operated a local insurance agency. He was asked the following question and answered the same in the manner hereinafter stated:

'Q. You told Mr. Adams your house was insured with Mr. Berryhill?

'A. With Mr. Berryhill.'

He did not contend that he told Mr. Adams that the contents of the house were insured against loss by fire. Therefore there was no waiver of the provision against other insurance assuming the said agent had the authority to make such waiver.

The policy also contained a provision to the following effect:

'The insured, as often as may be reasonably required, shall exhibit to any person designated by this Company all that remains of any property herein described, and submit to examination under oath by any person named by this Company, and subscribe the same; and, as often as may be reasonably required, shall produce for examination all books of account, bills, invoices and other vouchers, or certified copies thereof if originals be lost, at such reasonable time and place as may be designated by this Company or its representative, and shall permit extracts and copies thereof to be made.'

The declaration alleged, among other things, that following the fire loss on October 31, 1960, the defendant exercised its right to have the plaintiffs examined under oath in accordance with the foregoing provision of said policy, and a proper demand for said examination under oath was mailed to and received by the plaintiffs and notified them that the examination was desired in the office of the chancery clerk at Woodville, Mississippi, and they appeared at the time suggested. At the time and place set for the examination, the following transpired. Mr. W. F. Goodman, attorney for the defendant insurance company, for and on behalf of the insurance company stated:

'We are ready to proceed with the examination under oath and would like to have the chancery clerk give the oath to the insureds.

'BY MR. WATSON (representing the plaintiffs):

'The insureds are here and I have in my office the insurance policies and mortgage papers and will be glad to give you all available information. In fact, we will be glad to answer any list of written questions you may care to furnish us, but we will not permit the testimony of the insureds to be taken down or recorded. We do not believe that is reasonable for the reason that numerous statements have been taken by the adjustor, agents, the sheriff and the state fire marshal.

'BY MR. GOODMAN:

'The insurance policies give us the right to examine the insureds under oath as well as the right to...