Hartford Fire Ins. Co. v. Dickerson

• Decision Date: 04 May 1931
• Docket Number: 29432
• Citation: 160 Miss. 439,134 So. 177
• Court: Mississippi Supreme Court
• Parties: HARTFORD FIRE INS. CO. v. DICKERSON

134 So. 177

160 Miss. 439

HARTFORD FIRE INS. CO. v. DICKERSON

No. 29432

Supreme Court of Mississippi

May 4, 1931

Division A

1 INSURANCE.

By introducing fire policy and premium note insurer made prima facie case, entitling it to judgment on note, in absence of evidence of payment or other defense.

2 INSURANCE.

Fire policy provisions for suspension on default of premium note installment and reinstatement on payment of arrearage are valid.

3 INSURANCE. Mortgage clause respecting mortgagee's interest held not to supersede provision for reinstating policy on payment of delinquent installments of premium note.

The mortgage clause attached to fire policy was in substantially statutory form and was to effect that insurance as to mortgagee's interest only should not be invalidated by any act or neglect of mortgagor or owner, nor by any foreclosure or change in ownership, or by more hazardous occupation of premises than permitted by policy, with provision for mortgagee's payment of premium on mortgagor's failure to do so.

4. APPEAL and ERROR.

Though premium note authorized attorney's fees, fees could not be allowed on appeal, where no evidence thereon was offered at trial.

HON. T. E. PEGRAM, Judge.

APPEAL from circuit court of Benton county, HON. T. E. PEGRAM, Judge.

Action by Hartford Fire Insurance Company against W. A. Dickerson. From a judgment of the circuit court, for defendant on appeal from a justice court, plaintiff appeals. Reversed and rendered.

Reversed, and judgment here for appellant.

Marvin Crawford, of Ashland, and R. L. McLaurin, of Vicksburg, for appellant.

The only theory upon which the learned court below held that the recovery could not be had by the insurance company was that the insurance, having been suspended during the default in the payment of the note, that the note was void and without consideration, because of such condition contained therein. This ruling of the trial court was equivalent of saying to the appellee that he might relieve himself of the legal obligation to pay his own note because of his default, without any breach of the contract on the part of the insurance company.

This identical question was settled by this learned court in the case of Home Fire Insurance Company of New York v. McFarland, 142 Miss. 558, 107 So. 754, to the opinion in which case we respectfully direct the attention of the court. The opinion in the foregoing case was written by Judge McGowen, and it was specifically held that one might contract for the suspension of a contract, and a renewal or reinstatement of the terms and provisions thereof, upon the payment of the arrearage.

T. M. McKenzie, of Ashland, for appellee.

The facts are that the burden of proof was on the plaintiff and his own witness admitted under oath that he did not know whether any or all of these premiums had been paid. Under section 5185, Miss. Code 1930, Vol. 2, the plaintiff was required by this section to notify the mortgagee or trustee of the failure of the mortgagor to pay any premiums due, and should he fail to do so the policy would then become null and void and therefore no rights would exist for either party, and the case cited by counsel, Home Fire Insurance Co., of New York v. McFarland, in 142 Miss. 558, 107 So. 754, decided by this honorable court is not in point for the reason that the court only held between the parties that the failure to pay a premium lapse the policy with the right of either party to arrearages and continue the policy in full, the statute above quoted makes the policy absolutely null and void upon the failure of the mortgagor to pay the premium or the failure of the fire insurance company to notify the mortgagee on the failure or default in the premium and last but not least the failure or default of the mortgagee to pay the premium renders the policy null and void and this honorable court has held in a numerous line of decisions and leading cases being the case of Cotton Oil Co. v. Fire Insurance Co., 152 Miss. 532, 533.

OPINION

Cook, J.

The appellant, Hartford Fire...