Nicholson v. Bankers' & Shippers' Ins. Co

• Decision Date: 16 January 1933
• Docket Number: 30168
• Citation: 145 So. 349,164 Miss. 523
• Parties: NICHOLSON v. BANKERS' & SHIPPERS' INS. CO
• Court: Mississippi Supreme Court

145 So. 349

164 Miss. 523

NICHOLSON v. BANKERS' & SHIPPERS' INS. CO

No. 30168

Supreme Court of Mississippi

January 16, 1933

Division B

1 INSURANCE.

Evidence sustained finding that cypress shingle roof destroyed had deteriorated seventy-five per cent, in value; hence judgment for twenty-five per cent. of approximate cost of replacing roof with similar material was authorized.

2. APPEAL AND ERROR.

Exceptions need not be taken to trial court's ruling and should not be noted in transcripts so as to add unlawfully to costs (Code 1930, section 724).

HON. E L. BRIEN, Judge.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Suit by Mrs. M. L. Nicholson against the Bankers' & Shippers' Insurance Company. From the judgment, Mrs. M. L. Nicholson appeals, and the Bankers' & Shippers' Insurance Company cross appeals. Affirmed on direct and cross appeal.

Affirmed on direct and cross appeal.

Dabney & Dabney, of Vicksburg, for appellant.

The roof, under the city ordinance being a total loss, the question of age or depreciation or detorioration does not enter into the case and no evidence should have been admitted to that effect.

The roof that was burned had been on the building many years before the ordinance was adopted and was on the building at the time the policies sued on were issued, and was the identical roof insured against loss in the policies. The defendant companies knew of the existence of the ordinance--or are presumed in law to have known of it--made no objection to insuring the heart cypress shingle roof--made no demand that the roof be changed to comply with the ordinance--and cannot now, after loss, and after plaintiffs are compelled to sue for their money, claim a non-compliance by plaintiffs with the ordinance as a defense.

When a barge is injured in a storm at sea, and is insured against perils of the sea, when the insurance company, instead of paying the indemnity provided for in the policy with the consent of the owner elects to repair the barge, it thereby becomes the duty of the insurance company to place the barge in as good condition as it was before being injured in the storm at sea. Complete indemnity is the contract of insurance.

Fireman's Fund Ins. Co. v. Gulf Transportation Co., 99 So. 515.

Under the valued policy law -- section 5183, Code of 1930--depreciation should not be considered in case of a "partial loss" such as this.

Watkins, Watkins & Eager, of Jackson, and Chaney & Culkin, of Vicksburg, for appellee.

Confessedly, the appellants in this case violated the ordinance upon which the suit is predicated. This cause of action set out in the appellant's declaration is predicated upon the municipal ordinance that they were forbidden to repair the roof in question; that under the terms of the ordinance, they were required to construct at least the main roof of the building with standard materials measured by the requirements of the ordinance, and the appellants sue for an entirely new roof of the most expensive material, to-wit, asbestos, provided in the ordinance, upon the theory that more than fifty years before the fire a roof existed upon the building constructed of heart cypress and that asbestos more nearly complies therewith than any other roofing material known.

It is the position of appellees and cross-appellants that if the appellants should be permitted any recovery at all, the recovery should be limited, so far as the roof is concerned, to the actual deterioration thereof brought about by the fire. To permit the appellants and cross-appellees to recover for a standard roof over the entire main building, either of asphalt or asbestos, or any other building material provided by the ordinance, would enable the appellants to take advantage of their own wrong, and would be placing a premium upon their continuous violation of the municipal ordinance.

45 C. J., page 1581.

Argued orally by Moncure Dabney, for appellant, and by W. H. Watkins, Sr., for appellee.

OPINION

Griffith, J.

We have carefully examined and considered the authorities relied on by both sides, and are not convinced that any material error of law was committed by the trial court, substantially prejudicial to either of the parties. And as to the facts the case having been tried by the judge without a jury, it is not shown that the findings are not supported by sufficient evidence or that the judgment is manifestly wrong as being against the great or overwhelming weight of the evidence. On the contrary, we think the amount of the judgment is substantially correct, and this may be worked out on more...