Home Ins. Co. of New York v. Cavin

• Citation: 162 Miss. 1,137 So. 490
• Decision Date: 16 November 1931
• Docket Number: 29586
• Court: United States State Supreme Court of Mississippi
• Parties: HOME INS. CO. OF NEW YORK v. CAVIN

137 So. 490

162 Miss. 1

HOME INS. CO. OF NEW YORK v. CAVIN

No. 29586

Supreme Court of Mississippi

November 16, 1931

Division A

Suggestion Of Error Overruled January 11, 1932.

APPEAL from circuit court of Wilkinson county HON. R. L. CORBAN Judge.

Action by Carl Cavin against the Home Insurance Company of New York. Judgment for plaintiff, and defendant appeals. Reversed, and judgment entered for defendant.

Reversed and judgment here for appellant.

R. H. & J. H. Thompson, and Fulton Thompson, all of Jackson, for appellant.

Contracts evidenced by insurance policies, the terms thereof being plain of meaning and unambiguous, are enforced by the courts as are the terms of other contracts; so decided more than once by this court.

There are many questions of law so fundamental and so well determined and absolutely and unquestionably settled as to make the citation of authorities in support of them not only useless, but reflections on the intelligence and learning of the court. The question most prominently presented in appellant's original brief is of the character stated.

D. C. Bramlette, of Woodville, for appellee.

There being no citation of authority in appellant's brief, with the greatest respect for opposing counsel, we ask this Honorable Court to affirm the judgment of the lower court.

Goodyear Yellow Pine Company v. Lumpkin, 158 Miss. 578; Johnson v. State, 154 Miss. 512, 122 So. 529.

Contradictory evidence in regard to alleged fraudulent misrepresentation, makes an issue for the jury.

Knight v. Hartford Insurance Company, 142 Miss. 382.

A contract of insurance is construed most strongly in favor of the insured and the mere negligence or carelessness on part of insured, although directly contributing to and causing loss, will not relieve insurer from liability.

Home Insurance Co. of New York v. Moore and Rawles, 151 Miss. 189; Southern Home Insurance Company v. Wall, 156 Miss. 865, 869.

The bona fides of the insured should be left to the decision of the jury.

Miller v. Phoenix Insurance Company of Brooklyn, New York, 105 Miss. 4; Aetna Insurance Co. v. Miller, 113 Md. 686, 78 A. 483; Sussex County Mut. Ins. Co. v. Woodruff, 26 N. J. L. 541.

There is no evidence of fraud whatsoever on the part of appellee since his explanation is perfectly reasonable as to his understanding of question No. 9.

In an action on a fire insurance policy, where the dispute is as to the value of the property destroyed (defendant claiming that plaintiff swore falsely, and obtaining an instruction that, if he did wilfully swear falsely in making proof of loss, he cannot recover), a verdict for plaintiff, where the evidence of value is satisfactory, will not be disturbed because of an instruction given at his instance, that no false swearing in making proof of loss will avoid the policy, unless the evidence satisfies the jury that the plaintiff knowingly and intentionally swore falsely as to some material fact, and that the burden of proof is on the defendant to show the wilful intent.

Phoenix Insurance Company v. Summerfield, 70 Miss. 827.

OPINION

Smith, C. J.

This is an appeal from a judgment awarding the appellee a recovery on a fire insurance policy. The appellant's complaint is that the court below refused to direct the jury to return a verdict in its favor.

One of the provisions in the face of the policy is that "this policy is made and accepted subject to the stipulations and...