Newman v. National Fire Ins. Co.

• Decision Date: 24 September 1928
• Docket Number: 26842
• Citation: 152 Miss. 344,118 So. 295
• Court: Mississippi Supreme Court
• Parties: NEWMAN v. NATIONAL FIRE INS. CO. [*]

118 So. 295

152 Miss. 344

NEWMAN v. NATIONAL FIRE INS. CO. ^[*]

No. 26842

Supreme Court of Mississippi

September 24, 1928

Division B

1 INSURANCE. Builders' risk policies held not effective before construction Had begun, though old buildings destroyed by fire was to furnish part of materials.

Builders' risk policies held not to have gone into effect at time of fire destroying old building situated on ground, which was to furnish part of materials for new building, because of fact that at such time construction had not begun in view of express provision of policies that property was only to be insured during construction of building.

2 INSURANCE. Builders' risk policies held to take effect on date issued only in case building at that time was in process of construction.

Builders' risk policies construed in light of provisions insuring property for certain period and expressly stating that property was insured only during construction of building held to take effect on day they were issued, provided that at such time building was in process of construction, otherwise they should not take effect until construction was begun.

3 INSURANCE. Policy may be shown as taking effect, subsequent to its date because of failure to comply with some condition precedent.

Although policy by its terms is to take effect on a certain date, yet it may be shown that because of failure to comply with some condition precedent it did not take effect until subsequent date.

HON. W. H. POTTE, Judge.

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

Action by Callie Newman against National Fire Insurance Company. Judgment of dismissal and plaintiff appeals. Affirmed.

Affirmed.

Barbour & Henry, for appellant.

R. L. McLaurin, and Campbell & Campbell, for appellee.

OPINION

ANDERSON, J.

Appellant brought this action in the circuit court of Yazoo county against appellee, on two fire insurance policies issued by the latter to the former. Appellant alleged, in her declaration, that the policies sued on covered her fire loss on an unoccupied building in Yazoo City. Appellee demurred to appellant's declaration, which demurrer was sustained. Appellant was given leave to amend her declaration, which leave she declined, and, thereupon, final judgment was entered dismissing the suit, from which judgment appellant prosecutes this appeal.

Perhaps appellant's case could not be more clearly and succinctly stated than as set out in her declaration, which follows, leaving off its formal parts:

"The plaintiff, Callie Newman, by attorneys, by this her amended declaration, filed by leave of court heretofore granted complains of the National Fire Insurance Company of Hartford, Connecticut, an insurance corporation existing under the laws of the state of Connecticut, and duly authorized and licensed to do business in the state of Mississippi, and for her cause of action alleges as follows, to-wit:

"On the dates hereinafter mentioned, the plaintiff was the owner of certain property in Yazoo City, Mississippi, situated at No. 118, on the west side of Champlain avenue in said city, and indicated on a certain record kept by the defendant and other insurance companies doing business in the state of Mississippi, for purposes of identification and rating, as Block 3A, Sheet 15, in said city; that said property consisted of certain materials useful and valuable for the purpose of building and re-building, the same being in the form of the remains of what had been a building or structure, but which, at all of said times, was in such dilapidated condition that it was unfit for occupancy, and was of no value whatsoever except the actual value of the planks, boards, brick, and other substance therein, useful as building material; that the plaintiff, prior to the dates alleged hereinafter, purchased said property as and for building material, for the purpose of using the same in the erection of a frame, one story, composition-roof theater; that, on or about September 10, 1926, the defendant company was doing business as aforesaid, and had in Yazoo City general agents, with full authority to write and issue policies of insurance binding upon the defendant company, and, on or about said date, the plaintiff, as the owner of the material aforesaid, applied to said agents of the defendant for insurance on said property, and said agents either inspected the said property and material, or were already fully advised and informed of the exact location and character of said property, and said agents were then and there advised by the representative of the plaintiff that insurance was desired on said property as material which could be used in the erection and construction of a theater as aforesaid.

"Plaintiff further alleges that said property, under the system of rating adopted by the defendant and other insurance companies doing business in the state of Mississippi, and as rated by the authority for that purpose under the laws of the state of Mississippi, was uninsurable as a building, and this fact was fully known to the agents of the defendant at all times hereinafter stated, and said agents knew that said property could be insured only as building material, and the plaintiff's representative seeking said insurance also knew said fact.

"Plaintiff alleges that, on September 10, 1926, and on December 3, 1926, the defendant's said agents issued and delivered to the plaintiff its two policies of insurance, which were filed herewith, and made Exhibits A and B hereto, and a part hereof as if fully set out herein, and, by said policies of insurance, which were wholly written and prepared by said insurance agents, did intend to and did insure the plaintiff, as the owner, and the plaintiff accepted said policies of insurance, as intended by said agents, to insure the said material as building material to be used in the construction of theater as aforesaid, and said property, being, as aforesaid, certain planks, boards, brick, and other materials on the premises in the form of a partially demolished, uninhabited, and untenantable building, was, by said Exhibit A and B, insured as building material, as aforesaid.

"Plaintiff further alleges that said partially demolished building was purchased by her as building material only, and was of no value for anything else, but, at the time of the issuance of each of said policies, was of the value, as building material aforesaid, of the sum of four thousand dollars, which fact was known to the agents of the defendant writing said policies. Plaintiff further alleges that she had, at the time of the issuance of said policies, entered formally into contract with a responsible contractor to build a theater on the said premises, and the building material on said premises as aforesaid had been checked and an itemized statement made thereof, showing exactly the character quantity, and value of each article as building material, and her said contract with said contractor had provided that said...