Mitchell v. Mississippi Home Ins. Co.

• Decision Date: 21 January 1895
• Citation: 18 So. 86,72 Miss. 53
• Court: Mississippi Supreme Court
• Parties: HATTIE MITCHELL v. MISSISSIPPI HOME INSURANCE CO

18 So. 86

72 Miss. 53

HATTIE MITCHELL v. MISSISSIPPI HOME INSURANCE CO

Supreme Court of Mississippi

January 21, 1895

FROM the circuit court of Montgomery county, HON. C. H. CAMPBELL Judge.

Action by appellant against appellee on a policy of fire insurance for $ 500, $ 400 thereof being on a stock of merchandise, $ 20 on store and office furniture and fixtures, and $ 80 on furniture belonging to a restaurant conducted in connection with the store. The facts touching the points passed on by the court are stated in the opinion.

As the court sustained plaintiff's demurrer to the second special plea, and appellant does not complain of this ruling it being favorable to her, it is not deemed necessary to set out this plea. The court excluded all the evidence for plaintiff, and from a judgment for defendant plaintiff prosecutes this appeal.

Reversed and remanded.

Sweatman Trotter & Knox, for appellant.

1. The iron safe clause had no sort of application to the furniture and fixtures. No books were kept in regard to these, and no inventory was ever made of them. The plea setting up a breach of said clause is not a defense to the whole action. The contract is not entire and indivisible, and the plea is bad because it defends as to the whole action. The goods, and the furniture of the store, and that of the restaurant, are valued separately, and there is no reason why a breach avoiding the policy as to the merchandise should render it void as a whole. That the policy is not an entire contract, see 73 N.Y. 452; 10 W.Va. 507; 52 Ill. 53; 27 Neb. 527; 39 Ill. Ap., 633; 33 Ib., 626; Clements', Fire Ins. Dig., 88-90. In cases where the entire policy is avoided, it is because of fraud in the inception of the contract, which vitiates the whole. Insurance Co. v. Bank, 71 Miss. 608, necessarily decided that a policy on a grocery store and dry goods store, though insured in a gross amount in the same policy, was divisible.

2. Defendant cannot avail of the breach of the iron safe clause, because its agent knew that the insured had no safe, and did not intend to have one, but intended to keep the books in her store and dwelling. Clements' Fire Ins. Dig., 550; 53 Ark. 215. Insurance companies should not be allowed to entrap the unwary, when they are advised of all the facts. They cannot take premiums and yet avoid the risk for facts known to them at the time. It would be taking the premiums without any equivalent whatever. It would amount to legalized robbery. 1 Abb., 166; 40 Ga. 135; 41 Ib., 660; 65 N.Y. 195; 95 U.S. 183; 27 Minn. 393; 18 Blatch., 368; 17 Iowa 600; 81 Ib., 321.

Hill & Thames and Somerville & McLean, for appellee.

1. The iron safe clause is a part of the policy. Without it the instrument would be meaningless, and the particular kind of property insured would be unknown. Being a condition of the policy, it was necessary to recovery that it should be strictly observed. It was a promissory warranty, and if broken, and the books destroyed by fire, it vitiates the insurance. 18 Ins. L. J., 803. A promissory warranty is one that requires the performance or omission of certain things, or the existence of certain facts, after the taking out of insurance, and if incorporated in the instrument itself, or if therein referred to and made a part thereof, there can be no doubt of its character. 11 Am. & Eng. Enc. L., 293. It was so held as to a warranty that the insured would keep a watchman on the premises at night, and the condition was held not to be kept by requiring one to sleep there. 11 Mo. App., 349.

2. Although the items are separately valued in the policy, they all constitute one stock of goods, and make the business that was insured for the gross sum of $ 500. There was but one premium paid, and where the amount of insurance is apportioned to distinct items, and the premium paid is gross, the contract is entire. Clements' Fire Ins. Dig., 87; 40 Md. 620; 23 Minn. 479; 69 Iowa 202; 8 Gray, 33.

It was not denied that the iron safe clause had been disregarded, and the court properly excluded plaintiff's evidence. The proof failed to support the statement in the pleadings that the production of the books, and last inventory had been waived.

OPINION

WOODS, J.

This is an action on an insurance policy issued by the appellee to appellant. The declaration is in the usual form. The insurance company filed the plea of the general issue and three special pleas. The first special plea sets up the defense of what is now commonly known as the iron safe clause; the second special plea sets up, by way of defense that whisky was retailed on the premises in which appellant kept her store and conducted her other business, and where the property insured was kept; and the third special plea defends on the ground that an addition to the buildings on the premises where the property insured was kept had been made, which increased the risk. The appellant demurred to the first and second special pleas, and took issue on...