Continental Ins. Co. v. Thrash, 39494
| Decision Date | 07 March 1955 |
| Docket Number | No. 39494,39494 |
| Parties | CONTINENTAL INSURANCE COMPANY v. Emmett Ross THRASH. |
| Court | Mississippi Supreme Court |
O. B. Triplett, Jr., Forest, Watkins & Eager, Jackson, for appellant.
Roy N. Lee, Forest, W. W. Pierce, Jackson, for appellee.
This appeal involves four policies of insurance issued to the appellee, Emmett Ross Thrash, by the Continental Insurance Company, New Hampshire Fire Insurance Company, Paramount Fire Insurance Company, and National Fire Insurance Company of Hartford, insuring the appellee's concrete block building for $6,000, and the contents thereof for $4,500, as against loss by fire, the liability of the said companies being pro rata. The building and contents located in Sebastapol, in Scott County, Mississippi were wholly destroyed by fire on June 16, 1953. The loss as to both items, that is, the building and its contents, is conceded to be total. Four separate suits were filed in the Circuit Court of Scott County, one on each of said policies. By agreement of the parties, the cases were consolidated. The case against the Continental Insurance Company was selected to be tried, and it was agreed that the result of that case would control the others. Judgment was rendered for the plaintiff in the case tried and a general judgment was thereupon entered against each of the companies for such company's pro-rata share of the loss. This appeal is from the judgment entered and it is likewise agreed on this appeal that the decision of the court in the case against the Continental Insurance Company shall control the decision in the other cases which are also here on appeal.
It is conceded by the appellant that the judgment of the court below should be affirmed as to the coverage on the building. Hence there is involved on this appeal only the coverage on the contents of the building consisting of merchandise and fixtures.
The material facts are substantially as follows: In March, 1953, the appellee, Emmett Ross Thrash, was engaged in the general mercantile business in Sebatapol in Scott County, and had been so engaged for about eleven years. His stock consisted of groceries, dry goods, shoes, small hardware, and general merchandise. For some four and one-half years, he had conducted his business in a concrete block store building which he constructed and owned in Sebastapol, and which was about 62 feet long and 28 feet wide. He had previously conducted his business in a smaller building which he owned and which he sold after he moved into his new building. He also owned his home, which was located about 500 yards north of his store building. He decided to insure his store building, being prompted to do so by the recent occurrence of wind storm damage in the area. He knew of no insurance agency in Sebastapol and he went to Newton, where he applied for insurance to the Newton Insurance Agency, Inc., conducted by Mrs. L. E. Wilson, and conceded to be the general agent for the insurance companies here involved.
According to his testimony, he applied for insurance on his store building only but was induced by the suggestion of the agent to take insurance on the store building and its contents, and on his home and household furniture. Mrs. Wilson and her employee, Mrs. Albert Stevens, denied that they or either of them made any suggestion as to the insurance coverage. The insured testified that when he applied for the insurance, Mrs. Wilson inquired if he had an iron safe and he told her that he did not, but that he kept his books and records at home at night, and she then inquired as to the kind of books and records he kept and he told her that he kept his daily sales, his inventories, and his charge accounts, and that as to his charge accounts, he kept them on a sales pad and that when a customer paid his account in full, he surrendered to him all of his sales tickets. The insured further testified that after disclosing to Mrs. Wilson the aforesaid method of keeping his books and records, Mrs. Wilson said 'that was enough' and thereafter the insured paid the required premium and there was issued to him four policies of insurance, each covering pro-rata fire anc extended coverage to the total amount of $6,000 on his concrete block building, $4,500 on its contents, $2,000 on his home and $1,000 on the household furniture and personal property in the home. The policies so issued are the ones here involved.
Mrs. Wilson did not deny the conversation which the insured claimed to have had with her with reference to the kind of books and records which he kept, but said she did not recall it. Mrs. Stevens said that the insured had no such conversation with her. There is no contradiction, therefore, of the testimony of the insured that he fully disclosed to the general agent his method of keeping his books and records and that she approved it and thereupon collected the premium and issued the policies. There is conflict in the testimony as to whether the policies were mailed to the insured or delivered by Mrs. Wilson in person. It is undisputed, however, that Mrs. Wilson, about a week later, went to the place of business of the insured in Sebastapol and there viewed the store building and the stock and fixtures of the insured and thereafter continued the policies in force. The policies are dated March 11, 1953.
About one o'clock on the early morning of June 16, 1953, the store building and its contents were destroyed by fire resulting from an unknown origin. The insured was at home in his bed. His books and records were in his home. Upon being awakened and apprised of the fire, he and his wife went to the scene. The fire had so far progressed that nothing could be saved except three dress lengths in the window of the value of $1.75 each, and five spools of wire worth $7.14 or $8.14 each. The loss is conceded to be total. The agent at Newton received prompt notice of the fire and notified the adjustment bureau. An adjuster was sent to the scene, as was also the auditor for the company, to check the insured's books and records. The insured submitted to them his inventories taken January 1, 1953, consisting of an inventory of his fixtures showing a total value of $1,529.50, and an inventory of his stock of goods and merchandise showing a total of $6,481.33, his record of daily sales, his credit sales pad, his invoices, a list of his invoices, and there was later produced a record kept by the insured's wife showing the merchandise taken from the store for home use for the period from January 1, 1953 to the date of the fire. J. W. Coche, the auditor for the appellant, testified that the inventories taken January 1, 1953 were made available to him and that there was furnished him by the insured a notebook containing purchases of goods from January 1, 1953, a notebook of sales for the same period, charge items, and accounts receivable outstanding. The auditor for the appellant testified that he could not determine from the books and records the amount of the loss, but nevertheless, he determined from the books and records furnished him that the value of the goods and stock of merchandise at the time of the fire was $7,700.92. Troy Sloan, a certified public accountant of some eight years' experience, employed by the insured, examined the books and records of the insured and determined therefrom that the value of the merchandise at the time of the fire was $7,717.77. He testified that for insured's type of business, his records were as good as he had...
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