Queen Ins. Co. v. Betbeze

• Decision Date: 05 December 1910
• Docket Number: 14811
• Court: Mississippi Supreme Court
• Parties: QUEEN INSURANCE COMPANY v. LOUIS BETBEZE

53 So. 592

98 Miss. 262

QUEEN INSURANCE COMPANY v. LOUIS BETBEZE

No. 14811

Supreme Court of Mississippi

December 5, 1910

FROM the circuit court of Lauderdale county, HON. JOHN L. BUCKLEY Judge.

Betbeze appellee, was plaintiff in the court below; the insurance company, appellant, was defendant there. From a judgment in plaintiff's favor defendant appealed to the supreme court. The facts of the case are stated in the opinion of the court.

Reversed and remanded.

McLaurin Armistead & Brien and Baskin & Wilborn, for appellant.

McBeath & Miller, for appellee.

OPINION

MAYES, C. J.

Betbeze was a holder of a fire insurance policy, on certain household furniture, in the Queen Insurance Company for the sum of fifteen hundred dollars. While the insurance was in force the property covered was destroyed by fire. The insurance company refused to pay the amount of the policy, whereupon suit was instituted to recover same. The declaration was in the usual form, making the policy an exhibit. No peculiar feature of the declaration is necessary to be stated in this opinion, since the turning point of the case does not involve this feature of the pleading. The insurance company pleaded in defense the general issue, and gave notice, under the general issue, that on the trial it would offer evidence to show that by the terms of the contract it was provided that "this entire policy unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy." That no such permission was indorsed or added to the policy, but, notwithstanding this fact and in violation of the terms of the policy, plaintiff did have other insurance during the existence of the policy sued on, without permission or knowledge of appellant. No replication was filed by appellee to this notice, and the case went to trial on the issues thus made by the pleading; that is to say, squarely on the denial of liability on the part of appellant, under the terms of the policy, because the appellee had violated the contract by taking out other insurance without permission of appellant indorsed on or added to the policy. In this attitude of the pleading Betbeze himself took the witness stand, and undertook to testify, in avoidance of the clause in the insurance policy above quoted, that, at the time he took out the policy of insurance now in suit, he informed the agents of appellant that he then had on the property additional policies amounting to thirty-five hundred dollars, and that the policy in suit was issued with full knowledge on the part of appellant's agents that there was concurrent insurance, and the premiums paid and accepted with this knowledge, and...