Southern Home Ins. Co. v. Wall

• Decision Date: 31 March 1930
• Docket Number: 28557
• Court: Mississippi Supreme Court
• Parties: SOUTHERN HOME INS. CO. v. WALL

127 So. 298

156 Miss. 865

SOUTHERN HOME INS. CO. v. WALL

No. 28557

Supreme Court of Mississippi

March 31, 1930

Division B

Suggestion of Error Overruled May 5, 1930.

APPEAL from circuit court of Jones county, Second district HON. W J. PACK, Judge.

Action by A. R. Wall against the Southern Home Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

W. S. Welch and Ellis B. Cooper, both of Laurel, for appellant.

The burden was upon appellee to prove that the goods of the value sued for were destroyed by fire, as this is the only thing insured against.

26 C. J., p. 518.

An exception exempting the company from liability for loss caused by theft, relieves the company from the liability which would otherwise rest upon it, to pay for property stolen during the progress of the fire, or during the process of removal of the property necessitated by the fire, although it has been held that where the clause merely excepts loss by theft, it does not include loss from that cause during removal of the property.

26 C. J., p. 344.

Collins & Collins, of Laurel, for appellee.

Under policy of insurance where insurer is exempted from liability from theft, but requiring insured to use reasonable means to save and prevent insured property from loss and damages at and after fire, these provisions are inconsistent and the insurer is liable for loss by theft during progress of fire.

Queens Insurance Company v. Patterson Drug Company, 74 So. 807; Leiber v. Liverpool, London & Globe Insurance Company (Ky.), 6. Bush. 639, 99 Am. Dec. 695.

OPINION

Anderson, J.

Appellee brought this action against appellant in the county court of the second district of Jones county on a fire insurance policy issued by appellant to appellee to recover a fire loss on a stock of merchandise covered by the policy. There was a trial, resulting in a verdict and judgment for appellee in the sum of two hundred sixteen dollars and eighty-one cents; from that judgment appellant appealed to the circuit court, where the judgment of the county court was affirmed; from the judgment of the circuit court, appellant appeals to this court.

Appellant defended the action on two grounds: First, that the loss suffered by appellee was not covered by the policy; and, second, if the loss was covered by the policy, the maximum amount appellee was entitled to recover was twenty-three dollars and forty cents.

There was no substantial conflict in the evidence as to the material facts. There was a conflict, however, as to the inferences to be drawn from the proven facts and surrounding circumstances. The policy covered appellee's stock of merchandise; it contained the usual three-fourths value clause, and the clause against theft. The building in which appellee conducted his mercantile business was burned. Appellee occupied only part of the building; the part of the building occupied by him was not burned, but in fighting the fire his stock of merchandise was damaged by smoke and water. After the fire, and before any of the goods were removed, the goods were inventoried, showing a value of fifty-six dollars and sixty-nine cents, the damage to the goods by smoke and water caused by fighting the fire was twenty-three dollars and forty cents.

The fire took place on December 10, 1928. On November 15, 1928, an inventory of the stock was made, showing a value of five hundred twenty-nine dollars and twenty cents. Between the time of the inventory and the fire appellee bought and put into his stock goods invoicing two hundred twelve dollars and nine cents, and sold between those dates goods of the invoice value of three hundred eighty-two dollars and twenty cents. Appellee's average profit was twenty per cent. These figures, added and subtracted in the proper way, showed that there was on hand at the time of the fire goods of the value of four hundred thirty-five dollars and eighty-three cents, instead of the value of fifty-six dollars and fifty-nine cents, as shown by the inventory after the fire was over. Appellee's theory was that during the progress of the fire goods of the value of the difference between these two sums was stolen.

Appellant's position is that under the terms of the policy there was no liability for loss by theft:

"This company shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war or commotion, or military or usurped power, or by order of any civil authority; or by theft; or by neglect of the insured to use all reasonable means to save and preserve the property at and after a fire or when the property is endangered by fire in neighboring premises; or (unless fire ensues, and, in that event, for the damage by fire only) by explosion of any kind, or lightning; but liability for direct damage by lightning may be assumed by specific agreement hereon."

In construing the provisions of a contract of insurance, all the provisions of the policy must be so construed, if it can be reasonably done, so as to give effect to each. Where the policy is subject to two interpretations, equally reasonable that which gives the greater indemnity to the insured will prevail. If one construction, looking to the other provisions of the policy, and to its general object and scope, would lead to an unreasonable result, such construction must be abandoned, and that construction adopted which will be more consistent with reason. In all cases the policy must be liberally construed in favor of the insured, in order to accomplish the purpose of the insurance. 1 May on Insurance, 174, 175; McMaster v. N.Y. Life Ins. Co., 183 U.S. 25, 22...