Mississippi Fire Ins. Co. v. Dixon

• Decision Date: 03 December 1923
• Docket Number: 23641
• Citation: 98 So. 101,133 Miss. 570
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI FIRE INS. CO. v. DIXON

98 So. 101

133 Miss. 570

MISSISSIPPI FIRE INS. CO. v. DIXON

No. 23641

Supreme Court of Mississippi

December 3, 1923

Division A

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Action by R. M. Dixon against the Mississippi Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Wells, Stevens & Jones, for appellant.

The court erred in overruling the motion for a continuance of the defendant and forcing it to trial in the absence of D. M Mayers and Arnold Harbour. Each of these witnesses had had personal service of subpoena to be present as a witness. The testimony of each was most material. By no other witness could be proven what we expected to prove by these two witnesses, as set out in the motion for continuance and set forth above in the statement of facts. D. M. Mayers was sick in bed and he had a doctor's certificate to that effect.

Arnold Harbour was absent, but we had made every effort to have him present and would have had him attached but for the fact that an attachment would have done no good; the case would have been over before he could have been brought to Jackson. However, he was in the state of Mississippi at his home and the defendant could have had him present at the next term of court.

While of course, it was in the discretion of the court to continue or not continue the case, that discretion was one which was controlled by the settled law of the state as set forth in previous decisions of this court and not an arbitrary one to be exercised by a judge to obviate difficulties brought upon himself by the plaintiff in bringing his suit over a hundred miles from home. This court has spoken in no uncertain tones upon this proposition.

In the case of Hemingway v. The State, 68 Miss. 371, the law was laid down that "On motion for a new trial or appeal the supreme court occupies a vantage ground in reviewing the action of the trial judge in refusing a continuance. From this position in the light of the developed facts it will look to the whole case in deciding whether or not the party was prejudiced by the refusal to grant the continuance."

That this question is not entirely within the discretion of the trial court has been announced in a long series of Mississippi decisions. In Ogle v. The State, 33 Miss. 383, at 387, the court said "Applications of this kind are always addressed to the sound discretion of the court; and it is only where this discretion has been manifestly abused that the action of the court below can be assigned as error."

While on the facts the court did not here find sufficient grounds for reversal, the principle is announced that in a proper case it will do so. See, also, Lundy v. The State, 44 Miss. 699; Sellars v. Kelly, 45 Miss. 323; Hartford Fire Insurance Co. v. Green & Company, 52 Miss. 332; Caldwell v. The State, 85 Miss. 383; Scott v. State, 80 Miss. 197; Watson v. State, 81 Miss. 700; Walker v. State, 92 So. 580; Soloman v. The State, 71 Miss. 567. In all these cases the facts did not warrant a reversal, but the doctrine that where the facts did show that the refusal to allow a continuance worked a real hardship, was clearly enunciated.

The decisions of many other jurisdictions are in accord with ours in holding that the discretion to be exercised by the court upon an application for a continuance is a legal and not an arbitrary one and is subject to revision. Fla., Hardee v. Langford, 6 Fla. 13; Ind., Bartel v. Tieman, 55 Ind. 438; N. J., Haines v. Roebuck, 47 N.J.L. 227; N. Y., Tribune Association v. Smith, 40 N.Y. 251; Texas, Brooks v. Howard, 30 Texas 278; Turner v. The State, 20 Tex.App. 56; West Virginia, Buster v. Holland, 27 W.Va. 510; Wisconsin, Catlin v. Henton, 9 Wis. 476.

We submit that this is an identically parallel case with that of fire insurance upon a dwelling which is represented and described in the policy as being occupied by the owner, when in truth and in fact, it is occupied by a tenant. The courts have invariably held that under this standard form of fire insurance policy non-occupancy of the insured property by the owner avoids the policy and prevents a recovery.

We respectfully call the attention of the court to the following case bearing directly upon this case: Planters Mutual Insurance Association v. Dewberry, 69 Ark. 295. See, also, Elliott v. Farmers Insurance Company, 86 N.W. 224; See to the same effect: Wenzel v. Commercial Insurance Company, 67 Cal. 440; Hartford Fire Insurance Co. v. Ross, 23 Ind. 180; Germania Fire Insurance Company v. The Home Fire Insurance Company, 144 N.Y. 195.

Since, therefore, it is well settled on the authorities that where insurance is to cover a building only while occupied as a dwelling by the owner, it seems equally clear in the case at bar that where the policy on this personal property insured it against loss only while contained in the above described building . . . while occupied as a dwelling by the owner, the general rule is applicable.

No higher authority can be cited in closing this phase of our argument than Judge COOLEY in his monumental work on the law of insurance. In "Briefs on the Law of Insurance," Vol. 2, at page 1628, we find this statement: "Change from occupation by the owner or insured to occupation by a tenant may be regarded as a material change and consequently within the meaning of the condition providing that a change of occupants will forfeit the insurance . . . The term "occupancy" may be used in relating to personal property, referring in such cases to the possession thereof."

Again, the insured, R. M. Dixon, entered suit without any arbitration having first been had, as required by the terms of the policy and until such arbitration was had the suit was premature and cannot be sustained.

In this connection we desire to call the court's particular attention to a series of cases argued and decided together by the supreme court of Ohio when policies containing the exact words of the policy here sued on came under the review of the Ohio court. The cases were elaborately argued and former decisions of the supreme court of Ohio were expressly overruled and the contention of the insurance companies upheld. Graham et al. v. German American Insurance Company, 75 Ohio State, 374, 79 N.E. 930, 15 L. R. A. (N. S.) 1055.

In accord with the supreme court of Ohio are the following opinions of the courts of Minnesota and Illinois, and Tennessee, as follows: Masness v. German American Insurance Co., 50 Minn. 341; Palatine Insurance Company v. The Morton-Scott-Robertson Company, 106 Tenn. 558, 61 S.W. 787; Phoenix Insurance Company v. Lorton, 109 Ill.App. 63.

The court erred in granting the second instruction for the plaintiff, found on page 182 of the record, which is as follows, to-wit: "The court instructs the jury for the plaintiff that where fraud is relied upon as a defense, the burden of proving such fraud is upon the defendant, and the proof must be clear and convincing. While such charges and defenses may be proved by circumstantial evidence the circumstances must be proven with reasonable certainty and the circumstances so proven must be such that the conclusion sought to be established follows logically from the facts. If there are two or more reasonable theories which may be drawn from the facts proven, the proof will be insufficient because, to invest mere circumstances with the force of truth, the conclusion must not only be logical, and tend to prove the facts charged, but must be inconsistent with a reasonable theory of innocence."

The court erred in granting the fourth instruction for the plaintiff, found on page 183 of the record, which is as follows, to-wit: "The court instructs the jury for the plaintiff that even though you believe that an over-valuation was made by the plaintiff in his proof of loss, this will not defeat his recovery unless you find further that such over-valuation was made for the purpose of defrauding the defendant, and if you should find that the over-valuation, if in truth and in fact, there was an over-valuation, is innocent you will return a verdict for the plaintiff."

The concluding portion of this instruction is palpably erroneous and constitutes reversible error in which the jury is directed that irrespective of every other defense in this case, and even though there was an over-valuation in the proof of loss, that if the over-valuation was innocently made, the jury must return a verdict for the plaintiff.

Teat & Potter, for appellee.

The first point made by the defendant is that the court should have sustained the motion for a continuance because of the absence of Mayers and Habour. The court will notice that in respect to the testimony of the witness Mayers, the plaintiff agreed that every fact set forth in the application and affidavit that the defendant expected to prove by Mayers was admitted to be true by the plaintiff, except that the plaintiff did not admit that Mr. Mayers was informed that the claim was excessive, but did admit that if Mayers was present he would testify that shortly after signing the proof of loss he was informed by persons that he believed to be credible that the claim was excessive, so excessive as to justify a rescission of the adjustment.

In regard to the proposed testimony of Habour as shown above, the defendant placed three witnesses upon the stand by whom they attempted to prove that the value of the property in the house at the time of the fire did not exceed one hundred and fifty dollars or two hundred dollars. As this was the only fact they wished to prove by Harbour, his testimony would have only been cumulative and therefore no reversible error was committed by denying a continuance of the case because of his absence.

It is a...