Mississippi Home Ins. Co. v. Barron

• Decision Date: 23 March 1908
• Docket Number: 13,261
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI HOME INSURANCE COMPANY v. ELIZABETH BARRON

45 So. 875

91 Miss. 722

MISSISSIPPI HOME INSURANCE COMPANY v. ELIZABETH BARRON

No. 13,261

Supreme Court of Mississippi

March 23, 1908

FROM the circuit court of Rankin county, HON. JAMES R. BYRD Judge.

Mrs Barron, appellee, was plaintiff in the court below; the insurance company, appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court.

The facts are sufficiently stated in the opinion of the court.

Affirmed.

McWillie & Thompson, for appellant.

The policy obligated the insured, as a condition precedent to a right of action thereon, to "furnish, if required verified plans and specifications of any building, fixtures or machinery destroyed or damaged." They were to be furnished without inquiry as to what the insurance company was to do with them when received.

Presumably they would be used, first, to determine whether the company would or would not rebuild, and, then, if rebuilding should be determined upon, in the construction of the new house, but this presumption is by no means a conclusive one.

By reading the pertinent provisions of the policy it will be seen tat in every case where a fire occurs whether inflicting a total or a partial loss it provides, first, for what is known in insurance parlance as "immediate notice" and, second, within sixty days after the fire unless the time be extended by the company, for what is known as "particular proofs of loss," and then proceeds, and the insured shall, that is following the particular proofs of loss, but not as part thereof, furnish, if demanded, plans and specifications of the buildings destroyed. Manifestly by the terms of the policy plans and specifications are demandable although the loss was a total one.

The defendant's right to demand plans and specifications is not confined to cases wherein it has notified plaintiff of an intent to rebuild. It is true that by the terms of the policy the option of the company to rebuild depends upon notice of its intention to do so being given to plaintiff within thirty days after the receipt of the proofs required, but a failure to give such notice did not deprive the company of any other right. What the company would do with the plans and specifications, if rendered, or what value they would be to it, after the option to rebuild is gone, are very different questions from whether the plaintiff is under duty to furnish them on demand. We can easily conceive of a case, involving a meritorious question, other than one of rebuilding, in the solution of which plans and specifications of the house burned would be useful.

There is nothing in the statute affecting the company's right to demand plans and specifications of the burned house and nothing to relieve plaintiff from the effect of a failure to comply with the demand. Code 1906, § 2593, simply provides for the furnishing of blanks by the insurance company after being notified of a loss and makes a failure by the company to furnish blanks excuse the insured from making "proper proof of loss" prior to suit. This does not touch the subject of plans. and specifications at all, they are not part and parcel of "particular proofs of loss," are to be furnished only upon demand and, presumably, an insurance company does not and cannot know whether it wants them until after it has received "particular proofs of loss."

Of course the preceding section, Code 1906, § 2592, touching the amount recoverable for a total loss, has no application to the case; that section presupposes a right in the insured to recover some amount; the plea in this case goes to the entire declaration and, if good at all, it is good to defeat all recovery.

The statute provides that an insurance company shall not knowingly issue a fire insurance policy for an amount which exceeds the fair value of the property. This is positive law. Code 1892, § 2592. Under the plea the policy sued upon was issued in violation of the statute because of the assurances of the insured. She certainly should not be permitted, under such circumstances, to recover more than the actual value of the house, and the court below ought to have overruled the demurrer to this plea.

McLaurin & Enochs and A. J. McLaurin, Jr., for appellee.

Under our valued policy statute the company has no right to rebuild and plans and specifications cannot be required. The statute fixes the amount to be paid, and to permit the company to rebuild would be to say that they could pay in material and labor, which would cost them less than the face of the policy; because if it cost them to rebuild, as much or more than the face of the policy the option to rebuild would be valueless. This has been universally held to be the law in all states where valued policy statutes have been construed. We refer to Ohio, Texas, Tennessee, Nebraska and Wisconsin. For a full and complete discussion of this question we refer the court to the brief of counsel and opinion of the court in the case of Milwaukee, etc., Ins. Co., v. Russell, 56 L. R. A., 159, and the cases there cited. We do not know of a single decision contra and counsel for appellant have failed to cite any.

In view of the unbroken line of authorities in the case above referred to, we will not undertake to reply to the ingenious and fanciful argument of counsel for appellant that the plans and specifications might be useful to the company for the purpose of determining whether or not there was any liability at all. The insured could not in any event be required to furnish plans and specifications...